GUNARATNE AND ANOTHER
v.COMMISSIONER OF EXCISE
COURT OF APPEAL.
RAMANATHAN. J. AND WIJETUNGA, J.
M.C. KALUTARA 39025.
NOVEMBER 3, 1986.
Excise Ordinance ss. 17 and 49 – Failure by Excise Officer to report detection ofpossession of excess quantity of arrack – Measurement of excess – Death of 1staccused pending appeal – Widow prosecuting appeal as aggrieved person – S. 358.Code of Criminal Procedure Act- S. 16 of Judicature Act.
The detection was of the possession of 21 /2 bottles of arrack regarding the equivalentof which in relation to the permitted limit of 1/3 of an imperial gallon there was noevidence. A bottle is not a standard measure and may be of any size and capacity. Itwas for the prosecution to establish that the bottles contained more than the permittedamount of 1/3 of an imperial gallon of arrack. Even though the widow of the deceased1 st accused-appellant in this case cannot be treated as an aggrieved person, still theCourt can act in revision where as here, the interests of justice make it appropriate.
Case referred to:
Paulickpulle v. Pedrick -(1914) 17 NLR 350.
APPEAL from conviction in the Magistrate's Court of Kalutara.
S. Wijesinghe for the accused-appellants.
S. K. Gamalath, State Counsel for the Attorney-General.
Cur. adv. vult.
January 20, 1987.
The two accused-appellants in this appeal were charged in the
Magistrate's Court of Kalutara on the following charges:
That on or about the 12th day of April, 1976 within thejurisdiction of this Court at Kalamulla, the 1 st accused being anExcise Officer, viz. an Excise Inspector, wilfully failed to report adetection made by him, to wit, Maddage Don Pabilis having inhis possession some quantity of arrack which comes under the
Excise Ordinance, in excess of the permitted quantity that couldbe sold retail, in contravention of section 17 of the ExciseOrdinance read with Excise Notification No. 484, published inGovernment Gazette No. 1182 of 7.8.1959, and thereby the1st accused has committed an offence punishable undersection 49 of the Excise Ordinance.
2. That at the same time and place aforesaid and in the course ofthe same transaction the 2nd accused being an Excise Officer,viz. an Excise Corporal connived in the commission of theoffence set out in charge (1) above and thereby committed anoffence punishable under section 49 of the Excise Ordinance.
After trial both accused-appellants were convicted and sentencedto a fine of Rs. 750 and Rs. 450 respectively. The 1st accused diedpending his appeal and his widow had availed herself of section 358of the Code of Criminal Procedure Act and was permitted by anotherDivision of this Court to intervene as an aggrieved person and allowedto prosecute this appeal. This is an appeal from the conviction andsentence.
The prosecution case was briefly as follows. The virtual complainanthad on the 12th of April, 1976 purchased 2 1 /2 bottles of arrack froma tavern. He was waiting for a lorry to take him back home. When hewas waiting for the lorry the two accused had come and inspected hisbag with the 21 /2 bottles of arrack. The 1 st accused had informedthe vitrual complainant that he was in possession of a quantity ofarrack in excess of the amount permitted by law and taken away the21/2 bottles of arrack from the complainant and informed him that acase would be filed.
There had been no case filed against the virtual complainant by theaccused. The virtual complainant had informed the authorities whohad filed charges against the two accused in the Magistrate's Court.
Although the virtual complainant has in his evidence stated that hehad purchased 21/2 bottles of arrack from the tavern, there is nosatisfactory evidence that 21/2 bottles of arrack was more than 1 /3of an imperial gallon which is the relevant quantity prohibited by law.
There is also no evidence of the type of bottles sold and that whatwas sold was in fact eight dram bottles and a four dram bottle. Thetavern keeper has not given evidence and stated the type of bottle soldand the quantity in each bottle. In the absence of such evidence onecannot assume that what was sold in fact was in excess of thepermitted amount.
I am grateful to learned State counsel who has brought to my noticethe case of Paulickpulle v. Pedrick. In this case it was held that aperson is entitled to possess without a licence a quantity of arrack notexceeding a third of an imperial gallon and that a bottle is not astandard measure. It merely means a hollow vessel of a particularshape for holding liquids. It may be any size and capacity. Thepossession of the bottles was not by itself an offence. It is for theprosecution to establish that the bottles contained more than thepermitted amount.
The virtual complainant has merely stated that he had purchased2 1/2 bottles of arrack from a tavern. The learned Magistrate has goneon the basis that this was in excess but there is no evidence that thebottles were in excess of 1/3 of an imperial gallon. The question is, dothe contents of the bottles amount to over 1/3 of an imperial gallon ofarrack.
Learned counsel for the appellants has submitted that there is noevidence to show that the virtual complainant possessed a quantityexceeding a third of an imperial gallon, which is possession of thequantity of arrack which the accused is alleged to have failed toreport. Karunaratne, the Commissioner of Excise, has merelyenunciated the law relating to the Excise Ordinance but has not givenevidence that the quantity possessed by the virtual complainant was aquantity exceeding a third of an imperial gallon.
We are of the opinion that there is no satisfactory evidence of theactual quantity of arrack the virtual complainant possessed at the timeof the detection. In the circumstances, the prosecution has failed toestablish that the virtual complainant had committed an offence underthe Excise Ordinance. The charges against the two accused must,therefore, fail.
We, therefore, set aside the conviction and sentence of the 2ndaccused and acquit him.
As regards the 1 st accused, we find that he died pending his appealand another division of this court has already granted leave undersection 358 of the Code of Criminal Procedure Act to the widow ofthe deceased, as a person aggrieved, to intervene and prosecute theappeal.
We have examined section 358 of the Criminal Procedure Codewhich states-
“Every appeal and application for leave to appeal to the Court ofAppeal under this Code shall abate on the death of an accused.Provided that where the appeal is against a conviction, a personaggrieved may with leave of the court hearing the appeal interveneand prosecute the appeal only in so far as the finding of guilt isconcerned."
The expression "person aggrieved" is to have the same meaning asin section 16 of the Judicature Act which states-
"A person aggrieved shall mean any person whose person orproperty has been the subject of the alleged offence in respect ofwhich the Attorney-General might have appealed under this chapterand shall, if such person be dead, include his next of kin, namely hissurviving spouse, children, parents or further descendants orbrothers or sisters."
It is clear that the widow of the 1 st accused does not fall into anycategory of 'aggrieved person' as defined by section 16 of theJudicature Act.
However, in the special circumstances of this case and also as theconviction cannot be supported, we are of the view that in theinterests of justice this is an appropriate case for this Court to act interms of Article 145 of the Constitution-
"The Court of Appeal may, ex mero motu or on any applicationmade, call for, inspect and examine any record of any Court of FirstInstance and in the exercise of its revisionary powers may make anyorder thereon as the interests of justice may require."
Therefore, acting in revision, we set aside the conviction andsentence of the 1 st accused also and acquit him.
WIJETUNGA, J. – I agree.
Conviction set aside.Accused acquitted.