149-NLR-NLR-V-39-IMBULDENIYA-v.-ROMANIS-APPUHAMY.pdf
Imbuldeniya v. Romanis Appuhamy.
537
1937Present: Keuneman A.J.
IMBULDENIYA v. ROMANIS APPUHAMY.
826—P. C. Matale, 21,149.
Unlawful possession of toddy—Seizure of toddy—Failure to seal at place ofseizure—Irregularity not fatal—Proved circumstances to overcomesuggestion of defence.
In a charge of unlawful possession of an exciseable article, the failureto seal the article immediately after its seizure-is not a fatal irregularity,provided there are proved circumstances in the case which sufficientlyovercome the suggestion that the exciseable article was introduced bysome person between the seizure and the sealing.
A PPEAL from a conviction by the Police Magistrate of Matale.
B. H. Aluwihare, for accused, appellant.
Kariapper, C.C., for respondent.
• 538KEUNEMAN A.J.—Imbuldeniya v. Romanis Appuhamy.
December 10, 1937. Keunkman A.J.—
The accused was charged with and convicted for possessing an exciseablearticle, to wit, 32 drams of fermented toddy, i.e., 16 drams in excess ofthe prescribed quantity without a permit from the proper authority inbreach of section 16 of the Excise Ordinance, No. 8 of 1912, read withExcise Notification No. 264, published in the Government Gazette No. 3,060of June 22, 1934, which offence is made punishable under section 43 (o) ofthe Excise Ordinance (No. 8 of 1912).
The evidence disclosed that a Police party consisting of an Inspector,a Sergeant, and a Constable, who were on other official business, happenedto see a number of persons running away, and two men crouching behinda tree. The party went up and saw the accused pouring fermented toddyfrom the big pot P 1, produced, on to the ground. Another pot emptybut smelling of toddy was also found. The Inspector arrested theaccused, and took charge of pots. This occurred at Sudogangaestate.
The Inspector with the Sergeant and the accused went to the ExciseStation in the Inspector’s car. It was found that the pot P 1 was too bigto be placed in the Inspector’s car, so the Constable returned in anothercar with P 1 and the other pot. The Inspector and the Constable saidthat the two cars followed each other immediately, but the Sergeant’simpression was that one car had got out of sight of the other for a shorttime, although he said the Constable’s car was close behind. At theExcise Station the toddy in P 1 was measured and it was found that therewere 32 drams of toddy. The pots were thereafter sealed. ’ The measure-ment and sealing was done in the presence of the accused.
It was contended for the accused that the failure to seal the potsimmediately after the seizure was a fatal objection to the conviction inthis case. Counsel for the appellant relied on the judgment of Lyall-Grant J. in the case of Holsinger v. Joseph1, which followed an earlierunreported Judgment of Jayewardene J. The head note of the casereads : “ It was the duty of the Excise Inspector to have the tin sealed inthe presence of the accused immediately after seizure”. It does nothowever appear in the Judgments themselves that this was laid down as arule of Law. This was regarded as a weighty circumstance entitling theaccused to take objection that the exciseable article might have beenintroduced between the time of the seizure and of the sealing. In latercases, Almeida v. Fernando', and Bandaranaike v. IsmailJ, Lyall-Grant J.himself said in this connection, “ The question of sealing may be importantbut this again depends on circumstances in each case ”. It has beenheld in other cases that there is no inflexible rule that exciseable articlesshould be sealed immediately after seizure, although delay in sealing andinformalities in the search may diminish the weight of the evidenceregarding possession. It was also held that “it seems desirable thatarticles found should be sealed, wherever practicable, immediately aftersearch, in the presence of the accused, and before removal to the Police
■ 31 .V. L. ft. 250.* 31 -V. L. ft. 331.
* 7 Times I*. R. 91.
In re application by Neil Hewavitarana.539
~'”“'' * ’ "** ' ** * *“. <•”'
Station ”—vide Pi-ins v. Sabaratnam', and Kupasamy v. Coder Saibo*. In
this case the evidence was that the arrest was made not by Excise Officersbut by Police officers. It was by chance that the Police party discoveredthe pot in question, while they were out on other business. It washardly likely that the Police party had the necessary material for sealingat the spot, or themselves had fermented toddy which they could haveintroduced into the pot. The interval of time from the arrest at the spotto the sealing at the Excise Station did not appear to be long, and thattime was spent in travelling by car with a Constable in charge of the pot.The fermented toddy was measured at the Excise Station in the presenceof the accused. In the circumstances I think the suggestion that thefermented toddy was introduced by some person into the pot betweenthe seizure and the sealing was sufficiently overcome.
I dismiss the appeal.
Affirmed.