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Present: Lyall Grant J.
INSPECTOB OF EXCISE v. LEBBE.
£68—P. C. Dandagamuwa, 3f361.
Excite Ordinance—Hemp plant—Excisable article—Ordinance No, 8of im. *. 3 (15).
A hemp plant is an excisable article within the meaning of
section 3, sub-section (13), of the Excise Ordinance.
PPEAL from an acquittal from the Police Court of Danda-gamuwa.
J.E, M. Obeyesekere, G.C., for appellant.
Deraniyagala, for respondent.
October 9, 1929. Lyall Grant J.—
This is an appeal by a complainant, an Excise Inspector, withthe sanction of the Attorney-General from an acquittal.
The accused-respondent was charged with having cultivatedan excisable article, namely, ganja, without a licence from theGovernment Agent in contravention of section 14 (b) of ExciseOrdinance, No. 8 of 1912.
He was also charged with possessing ganja. After trial he wasacquitted.
The charge of possession was not pressed on appeal, but it wassubmitted that the evidence clearly establishes that the accusedcultivated ganja.
The Magistrate found it to be proved that the ganja plants werefound on a site cleared and prepared in a belt of jungle adjoiningthe accused’s garden—a spot which was also accessible to otherpersons.
The Magistrate proceeds: 1 c The only evidence to connect theaccused with the ganja plants is the evidence of the complainantand the evidence of Excise Guard William Silva. The complainantsays that accused came near the plants, loosened the soil and pulledup some weeds. Excise Guard William Silva says that accusedcame near the spot and loosened the soil round the trees. Thisevidence is insufficient to fix the accused with possession or cultiva-tion of the plants.’*
It. may be added that the evidence shows that .the Excise Officerremained in concealment in. the early morning and the accusedcame at about 5.30 or 6 a.h. while it wa3 dawning. It wassubmitted for the prosecution that the Magistrate had overlooked
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Inspectorof Excisev. Lebbe
(he effect of section 50 of the Excise Ordinance. Section 50provides that ' in prosecutions such as the present it shall bepresumed, till the contrary is proved, that the accused person hascommitted an offence under that section in respect of either anyexcisable article or any such material as is ordinarily used in themanufacture of an excisable article, for his conduct in connectionwith which he is unable to account satisfactorily.
It was contended that in the present case the conduct of theaccused in connexion with these ganja plants was suspicious andsuch as to call for an explanation. No explanation has been given.In the absence of such explanation it is to be presumed that theaccused is unable to account satisfactorily for his conduct inconnection with the plants. This amounts to proof that theaccused has committed an offence under section 43 (c), that is, ofcultivating the hemp plant (cannabis indica) or ganja.
It was conceded for the appellant that but for the provisions ofsection 50 of the Excise Ordinance the Magistrate's judgment wasperfectly correct, but it was argued that this section has the effect,in circumstances such as we have here, of throwing the burden ofproof on the accused and that the accused has failed to dischargethat burden.
I think there is great weight in this contention. It is evidentthat the provisions of section 50 have not been fully consideredby the Magistrate.
It was, however, contended in favour of the accused that section50 does not apply to the cultivation of ganja plants.
It was maintained that while ganja was an excisable article,a hemp plant was not. Beference was made to the definition insection 3 (13) of excisable articles.
Section 3 (13) reads:—“ Excisable articles means and includesany liquor or intoxicating drug as defined by this Ordinance."
By section 11 intoxicating drug includes ganja and every pre-paration and mixture of the same and every intoxicating drinkor substance prepared from the hemp plant (catmabis indica) orfrom any other material.
It seems to me that if the hemp plant cannot itself be describedas ganja, it may well be an intoxicating drug under this definition,inasmuch as it is material from which ganja is made.
Accordingly such a plant comes within the scope of section 50,which deals not merely with ganja but with every excisable article.
The matter however is set at rest by Excise Notification No. 24published in Government Gazette No. 6,606 of February 13, .1914,made by virtue of section 3, sub-section (11) (b) of the Ordinancewhich empowers the Governor by notification in the Gazette. to
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define what shall be deemed to be ganja. By this notificationthe Governor declares that the term “ ganja ’’ shall be taken toinolude every part of the hemp plant.
I have come to the conclusion that in this case .the accused oughtto have been convicted.
The Case is returned to the Magistrate in order that lie' mayrecord a conviction against the accused and for sentence.
I may add .that I quite agree with the remarks made by theMagistrate in regard to the Excise Inspector’s conduct in removingthe exhibits from the Court.
Inspectorof Excisev. Lebbe
INSPECTOR OF EXCISE v. LEBBE