132-NLR-NLR-V-58-G.-VERONICA-Appellant-and-W.-A.-N.-PERERA-S.-I.-Police-Respondent.pdf
1956Present :T. S. Fernando, J.G. VERONICA, Appellant, and W. A. N. PERERA(S. I. Police), Respondent
S. C. SS6—M. C. Gampaha, 28,273
JZxcisc Ordinance {Cap. -JJ)—Section -5/ (2)—Order of conf'sea lion thereunder—Quantumof credence to justify such order.
A vehicle in which an excisable article was transported is liable to bo confis-cated under section 51 (2) of tlio Kxciso Ordinance if there is evidence of circum-stances showing that the owner was nwaro of tlio purpose for which tho carwas being used and acquiesced in its uso for that purpose. Tlio failure of thoowner to give evidence explaining such circumstances would rniso a very strongpresumption of guilt against him.
A ,^APPEAL from an order of the Magistrate’s Court, Gampaha.
A. G. de Silva, for the party not iced-appellant-
li. E. de Silva, Crown Counsel, for the Attorney-General.
' Cur. adv. vuU.
August 21, 1956. T. S. Ferxasdo, J.—
On January 19, 195G, the complainant sub-inspector of Police chargedfour .persons (1) Edwin, (2) Jayasena, (3) Ekmon and (4) Thomas aliasDarlin in the Magistrate’s Court of Gampaha in case No. 2S,273 with tho
T. S. FERXAJ5DO, J.—Veronica v. Perera
550
unlawful possession, and transport of an excisable article, to wit, 192drams of fermented toddy, the equivalent of four gallons. Upon the1st accused Edwin and the 3rd accused Ekmon pleading guilty to thecharges, the complainant withdrew the charges against the 2nd and 4thaccused, and they were therefore discharged.
At the time of the detection of the offences referred to above, the toddywas being transported in mot ox* car No. X 4G35. The complainant onJanuary 20, 1956, moved in the Magistrate’s Court that notice be issuedon the appellant, who is the registered owner of the car, to show causewhy the car should not be confiscated under the.provisions of section 51 (2)of the Excise Ordinance. After notice had been served on her, .theappellant appeared in court on January 30, 1956, and stated that shehad cause to show. On the same day she was allowed to remove thecar which was then in the court’s custody on her furnishing security toenable her to have the car licensed for purposes of hiring. It is notcleai' why she was permitted to get the car so licensed before the questionof confiscation was determined. On February 27, 1956, the appellantappeared in court and “ gave an undertaking to sell the car and producepi*oof of sale in court ”. It is not clear why such an undertaking wasdemanded or given.
This same car was again seized on February 28, 1956, while it wastransporting fermented toddy. On this occasion there were in it 8J-gallons of toddy and it was being driven by a man called Abraham.On March 26, 1956, the Magistrate issued a notice also on Thomas alias.Dariin, the discharged 4th accused in case No. 2S,273, and husband ofthe appellant, to show cause why the car should not be confiscated. Thisstep appeal’s to have been taken by the Magistrate on the basis thatThomas alias Da rim is the reputed owner of the car.
The driver Abraham was prosecuted in ease No. 2S,940 on a charge ofunlawful transport of toddy and he pleaded guilty to the charge. Whenthe appellant and her husband appeared in court to show cause againstthe proposed order of confiscation of the ear, they were represented bycounsel, and the Police led evidence on May 2, 1956, relating to thecircumstances in which the car came to be seized on January 17th andagain on February 2Stli. It was established that the husband of theappellant was in the car when it was seized on January 17th at the timeit was carrying 4 gallons of toddy. The Police also called at the inquiryAbraham, the driver of the car on February 2Stli, who stated that itwas the appellant’s husband who put the SI- gallons of toddy in the car.lie stated further that a conversation took place at the house of theappellant, in the presence of the appellant, in the course of which theappellant’s husband and he discussed the arrangements in regard to thetransport of the toddy.
At the conclusion of this evidence, the-learned Magistrate again calledupon the appellant and her husband to show cause why the car shouldnot be confiscated. Counsel on their behalf stated to court that theywere not giving evidence nor calling any witnesses on their behalf. Thelearned Magistrate, holding that there is evidence that both the appellant
and her husband are the owners of the car, made order on May 10, 1956,confiscating the car. The appellant has appealed against this order.Her husband not being the legal or registered owner of the car has, logicallyenough, not taken any step to prefer on appeal.
On behalf of the appellant, counsel appearing before mo has contendedthat the learned Magistrate has irregularly admitted evidence relatingto the facts surrounding the seizure of the car on the second occasion,viz., on February 2S, 1950. There would have been some force in thiscontention had not the learned Magistrate called upon the appellant toshow cause after the evidence relating to the. second seizure had been eli-cited in her presence. Her counsel cross-examined both witnesses whogave evidence of the facts surrounding the second seizure, and if, as isnow contended, she came to court on May 2nd, J 956, only to meet a chargethat she was implicated in the offence committed on January 17, 1956,and was unprepared to meet the additional charge, she could have appliedfor a postponement to enable her to meet this additional charge. Shedid not make any such application and I am not prepared to say she hadno notice of the further allegation especially as she must have knownthat the car released to her on a certain undertaking had again beenseized by the Police on February 2Sth when it was transporting toddy.
It has also been contended that, although the ajijiellant is t-lio registeredowner, the Police have not been able to establish that she was in anyway implicated in the offence of unlawful transport of toddy either onJanuary 17 or on February 2S, 1956. I was referred in this connection tothe judgment of Schneider J. in Sinnetcimby v. Earnedingam *. Whilethis judgment Lays down the correct test to be employed in making anorder of confiscation under section 51 (2) of the Excise Ordinance, Iwould like to refer to the following observations of Lyall-Grant J. in theunreported case of Dissanayakc, v. Vchipillai Samnugam et al ", whftS*appear to be peculiarly appropriate to the ease now before me :—
“ The real question, as pointed out by Schneider J. in Sinnetamby v.Iicimalingam, is whether the owner was a willing party to the offence,whether he knew that his car was being used for this purpose andacquiesced in its use …. It was argued that there is nodirect evidence against the owner, but in cases of this sort-, it is j>ossiblcfor very strong presumptions to arise which can only be defeated by aclear and candid statement. ”
Even if the facts surrounding each of the seizures of this car are con-sidered separately, it will be difficult to resist the conclusion that theappellant was aware of the purpose for which the car was being used eachday and acquiesced in its use for that purpose. We find that on January17th the appellant’s husband was in the car of which the appellant isthe registered owner at a time when it was unlawfully transporting toddy.If her husband was transporting toddy without her knowledge or wasrising the car for a purpose of his own after obtaining it from her for use
for some other purpose, what difficulty lay in lier way in testifying to.that effect in court ? Her failure to give any evidence suggesting that sh,owas innocent of any unlawful purpose for which her car was being usedentitles one to presume that she could not truthfully say so. Even if thelearned Magistrate had not before him evidence relating to the circum-stances of the second seizure, I am not prepared to say that a confiscationof the car would have been unjustified. In regard to the seizure onFebruary' 2St-h, the learned Magistrate has after careful scrutiny acceptedthe evidence of the driver Abraham. It follows from an acceptance ofthis evidence that not only was toddy being transported in the car on thatday at the instance of the husband of the appellant, but that such trans-porting was witli the knowledge and acquiescence of the appellant herself.In these circumstances there is no good reason for this Court to interferewith the order of confiscation that has been made and I dismiss theappeal.
Appeal dismissed.