024-NLR-NLR-V-08-JAMES-APPU-v.-CAROLIS.pdf
1804.
November 11.
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JAMES APPU v.CAROLIS.
P. C., Matara, 15,026.
Ordinance No. 10 of 1844, ss. 14 and 82—Sale of arrack by distiller—Posseteion of quantity of arrack not exceeding two quarts.' .
A person being legally entitled to remove any quantity of arrack notexceeding two quarts commits no offence under section 82 of OrdinanceNo. 10 of 1844 by being in possession of such quantity.
Although a distiller commits an offence under section 14 of the Ordi-nance by selling at a time any quantity of arrack less than thirty-fivegallons, the purchaser from such distiller or from a retail dealer commits,no offence' so long as the quantity bought by him is not in excess of two■ quarts.'
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HE accused in this case was charged under section 32 of Ordi-. nance No. 10 of 1844 with unlawful possession of a quantity
of arrack.
The amount possessed by him was about a quart, which theprosecutor contended had been purchased from a distiller.
The Police Magistrate convicted the accused on the followinggrounds:—“ Under section 14 (1) of Ordinance No. 10 of 1844, asamended by section 6 of Ordinance No. 13 of 1891, the sale of arrackin any smaller quantities than thirty-five gallons is illegal. It isclear that arrack thus illegally sold is illegally possessed undersection 32. This is so even if the quantity possessed is under twoquarts.”
Against this conviction the accused appealed.
The case came up for argument before Moncreiff, J., on the 11 tbNovember, 1904.
Domhorst, K.G. (with him Puns), for appellant.—If section 32of Ordinance No. 10 of 1844 stood alone, the conviction would beright. Accused brings himself under the. second exception of thatsection. Section 28 speaks of ‘‘ quantity exceeding two quarts.”Removal of less than two quarts does, not require a certificate, asmay be seen by section 33. P. C., Balapitiya, 48,211, Ramandthan(1876), 315; P. C., Galle, 19,033, decided by Wendt, J., on 21stJanuary, 1903.
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Ramandthan, S.-G., contra.
11th November, 1904. Moncheiff, J.—
•The appellant was convicted on- a charge framed under section32 of Ordinance No. 10 of 1844 on the allegation that he was inunlawful possession of a quantity of arrack.
On his behalf it is urged that the possession contemplated bythat section is subject to four exceptions, and that a person whois in possession of arrack, if he is so in possession being legally
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empowered to remove the same, comes within the ^second excep- 1904.tion, and is not subject to the main provision of the section. The November 11.Judge says that there is a very strong probability that the accused Monobeiff,bought the arrack which was found in' his possession at the 'distillery. I cannot quite make out whether he means to find itabsolutely proved that he did so, or assume that he did so. He wasin possession of ah ink bottle containing arrack, which was capableof containing only one quart. If he bought that quantity fromthe distiller, the case would come under the provision of section 14.by virtue of which the distiller may be punished for selling arrackin a less quantity;than thirty-five gallons at a time. The section,however, does not, while it declares that such sales are unlawful,affect the purchaser with any pains or penalties, and, as I under-stand, such purchaser may, so far as this Ordinance is concerned, gofree from the consequences of his having purchased arrack underthose conditions.
The argument of the Solicitor-General is, as I understand,that the sale by the distiller being by the Ordinance illegal,the purchaser has no right tp deal with what he has bought. Now,section 33 provides that no such spirit as arrack, exceedingtwo quarts in quantity, shall be removed without a permit; and Mr.
Dornhorst has argued for the., appellant that the quantity of arrackcontained in the appellant’s ink bottle amounting to no more thanone quart, he was entitled by the terms of section 33 of the Ordi-nance to remove that quantity, and was therefore not in unlawfulpossession. In other words, he says that the. intention of theOrdinance is that, while a distiller may be punished for selling asmaller quantity than thirty-five gallons of arrack, even if it is nomore than one quart, yet a purchaser is not to be punished under thisOrdinance as having committed an offence if the quantity whichhe purchased is under two quarts. The second exception in section32 protects him. A case reported in Rdmanathan’s Reports (1872-1876), p. 315, was quoted, which expresses the view that section 32must be read in connection with the other provisions of theOrdinance. The particular provision now in force is section 33,and section 32 read along with section 33 seems to me to establishthe contention that, whether a purchaser has'bought from a dis-tiller or from a retailer, he is not to be punished for the possessionof the arrack, provided that that arrack amounts to no more thantwo quarts.
In my opinion, the Magistrate was wrong. The conviction isset aside.
I forgot to mention that the same view was taken of this sectionby Mr. Justice Wendt in case No. 19,033 of the Police Court ofOalle on the 21st January, 1903.