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JANSZ v. GREGORIS.P. C., Kurunegala, 11,072.
Arrack Ordinance—Retail gale of arrack contrary to licence—Ordinance No. 13
of 1391, e. 9—“Sell arrack at the price ofand at no other price
whatsoever ”—Intention of Legislature—Terms of the license—Evidenceof sale—Value of evidence of accomplice—Criminal Procedure Code, s.SOS—Drawing up of judgments.
The form of license issuable under the Ordinance. No. 13 of 1801imposes the condition that the licensee “ shall sell arrack and rum at the
“ price ofper imperial gallon, and in proportion for any less quan-
“ tity and at no other price whatsoever.”
Semble, per Bonsek, C.J.—(1) These words fix the maximum priceonly, and were inserted in the Ordinance npt out of regard for theinterests of the community With a view to discourage the sale ofintoxicating liquor, but because it Was felt to be the duty of the Govern-ment to fix the price of commodities for the benefit of the consumer.
The licensee is therefore at liberty to sell the arrack in hispossession at any price less than the maximum, or give it away fornothing.
The evidence of a man who sWears that he bought arrack for aprice below the maximum actually fixed by the license must be treatedas the evidence of an accomplice, because it requires two persons tobuy and sell.
When the Whole case for the prosecution rests upon the evidenceof such an accomplice, it should not be relied on unless he is corroboratedin some material particulars, although in strict laW a conviction foundedupon his evidence only is good.
Held, that a judgment drawn up under section 306 of the CrinfinalProcedure Code should specify the offence, the section of the law underwhich the conviction was had, the name of the accused, and the date ofthe conviction.
HIS was a prosecution under section 9 of the Ordinance No. 13
of 1891, in that the accused, being duly licensed by theGovernment Agent of the North-Western Province to sell arrackby retail from 1st January, 1900, to 31st December, 1900, inclusive,at tavern No. 1, situated at Kurunegala, on condition that he shallsell arrack at the price of Its. 4.50 per imperial gallon, and inproportion for any less quantity, and at no other price whatsoever,did on the 28th December, 1900, at tavern No. 1 aforesaid, contraryto the tenour of such license, sell or cause to be sold on his accountfive imperial gallons of arrack to one Itangkira, and two imperialgallons to one Undia, and one imperial gallon to one Juanis, at theprice of Its. 3 per imperial gallon.
The accused was the person put in charge of the tavern by therenters.
The license granted by the Government Agent to the renter toretail arrack and rum ran ns follows: —
“ This is to certify that I. F. C. Fisher, Government Agent forthe North-Western Province, do hereby license Mr. T. H. A. de
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1901.Soysa, Arrack Renter of Seven Korales for 1898 to 1900, to sell
February 18. arrack and rum by retail from the 1st January, 1900, to the 31stDecember, 1900, inclusive, at the tavern No. 1, situated at Kurune-.gala, and at no other place, on condition that the said Mr. T. H.
A. de Soysa shall sell arrack and rum at a price not less thanBs. 4.SO per imperial gallon, and a proportionate price for anyquantity less than a gallon.”
The renter authorized by writing the accused to sell arrackand rum in terms of this license, which was not in accordancewith the form of license given in the Ordinance No. 13 of 1891,
where the condition was expressed to be that ” the said
” shall sell arrack and rum at the price ofper imperial
“ gallon, and in proportion for any less quantity, and at no other“ price whatsoever.”
The Police Magistrate found the accused guilty and sentencedhim to pay a fine of Rs. 50, or to undergo three months’ rigorousimprisonment in respect of each of the sales alleged in thecharge.
The accused appealed.
No appearance for appellant.
The Chief Justice having expressed a desire to hear theSolicitor-General on behalf of the Crown,—
Ramanathan, S.-O., appeared for the respondent.—It must beadmitted that the license given by the Government Agent wasnot exactly in terms of the Form C given in Schedule IV. of theOrdinance. According to the Ordinance, arrack and rum shouldnot be sold for any other price than that fixed by the GovernmentAgent. [Bonser, C.J.—Was not the price fixed solely for thebenefit of the consumer? What does it matter to the Governmentif the renter sold it for a lower price?] It matters much, for ifarrack was sold cheap there would be too free a use of thisintoxicating article, and drunkenness and crime would increase.Therefore the distillation and sale of arrack have always beenGovernment monopolies, and it is necessary for the sake of moralityand good order that the sale of Buch dangerous drinks should notbe for a price higher or lower than Rs. 4.50. That was the policyof the Legislature. But the license issued by Mr. Fisher, theGovernment Agent, imposes the condition that the arrack shouldbe sold “ at a price not less than Rs. 4.50 per imperial gallon.”This is a minimum price only. The evidence in the case is thatthe sale was to some persons at Rs. 3 and to other persons atRs. 5. The prosecution of the accused is good at least as regardshis sale at the rate of Rs. 5. [Bonser, C.J.—There is no evidence
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that Bs. 3 was paid to the accused. But why should he not give 1901.away the arrack for nothing?] In Siman v. Jayasuriya it was February 18.held that a tavern-keeper may allow his servant to drink a dramof arrack without payment out of generosity, but any other form ofdisposal would be illegal (Ram. 1867, p. 281). He should sellat the price sanctioned by the Government Agent. (The casewas then argued on the merits.)
This is a case of some interest as regards the sale of arrack, audI therefore requested the Solicitor-General to be good enough toappear and argue the question, and I am obliged to him for hisargument.
The appellant is one of three persons who were authorized bythe arrack renter of the Seven Korales to sell at tavern No. 1 atKurunegala arrack and rum on his behalf. The conviction isunder section 9 of Ordinance No. 13 of 1891, which is a re-enact-ment of section 26 of Ordinance No. 10 of 1844. That sectionprovides that no person shall sell or dispose of by retail anyarrack or rum without having first obtained a license accordingto the form prescribed by the Ordinance, and it also provides thatany person who shall sell or dispose of any such liquor, contraryto the tenour of the license to be granted by the GovernmentAgent, shall be liable on conviction to certain punishment. Theform of license described by the Ordinance of 1891 is almost wordfor word identical with that contained in the Ordinance of 1844,and it is in this form:—“ This is to certify that- I, the Govern –
“ ment Agent forProvince, do hereby licenseto
“ sell arrack and rum by retail between [certain dates] at [certain" places], and on condition that the said licensee shall sell arrack
“ and rum at the price of■— per imperial gallon and in pro-
“ portion for any less quantity, and at no other price whatsoever.”
In the present case, a license was produced purporting tobe signed by F. C. Fisher, Government Agent for the North-Western Province, authorizing Mr. T. PI. A. de Soysa to sellarrack and rum by retail between certain dates at tavern No. 1,situated at Kurunegala, “ on condition that the said Mr. T. H. A.“ de Soysa will sell arrack and rum at a price not less than“ Rs. 4.50 per imperial gallon, or in proportionate price for any“ quantity less than a gallon.” Now, it will be observed that thislicense varies materially from the form in the Ordinance, and thatbeing so I do not think that the appellant could properly beconvicted of selling liquor contrary to its tenour. The form in
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1901. tie Ordinance fixes a price and says it is not to be sold at anyFebruary 18.other price. This license fixes a minimum price, and leaves the
Boxskk C J.retailer at liberty to sell at any price exceeding that fixed price
that he can get people to give him. The petition of appeal takesthe objection that the intention of the Legislature in prescribingthat it is not to be sold at any other price than the price fixedwas for the benefit of the consumer, and that the retail dealerwas at liberty to give away for nothing or to sell at any lessprice any arrack which he might have to dispose of. In supportof that view a case was cited, which was decided in 1867 by thisCourt by Chief Justice Creasy, Mr. Justice Stewart being present.That was an appeal against a conviction under section 26 of theOrdinance of 1844. The judgment is briefly reported in Rama-nathan’s Reports, 1867, p. 281, and it would appear that aretail dealer was convicted under that section because he hadallowed his servant to drink his arrack without payment, and theSupreme Court set aside that conviction, observing that the words“ disposing of ” evidently relied upon by the prosecution werelimited by the preceding word “ sell,” with which they wereassociated, and that “ sell ” and “ dispose of ” simply meant selland dispose of by way of sale. The Court went on to say that‘‘ for a man to allow his servant to drink a dram of arrack without” payment, but merely as a matter of (probably imprudent)
‘‘ liberality, is no more punishable under the Ordinance than if“ he had taken a dram himself.”
I do not understand that the principle of that decision waslimited to the case of a man’s servants being given the arrack.If a man chooses to give a dram to a friend, an acquaintance,or to a passer by, the case will bo equally within the principleof the decision. The Solicitor-General here calls my attentionto what is said to be a decision reported in Grenier's Reports.He refers me to what is merely a note on p. 8 of Grenier’sReports for 1872: " Held that a person might dispose of arrack” in many ways without there being any sale, and might so” bring himself within the operation of the Arrack Ordinance,“ No. 10 of 1844.” That may be perfectly true, but the decision,whatever it is, does not say he brings himself within the pro-visions of this particular section 26 of the Ordinance of 1844,and the words *' disposed of ” are of no moment or importancewhatever in the present case, because the license does not attachany condition to the <lisposrd of arrack. The only condition isthat it be not sold a< oilier than the fixed price. We thereforehave, as T was saying, the authority of the Supreme Court that arelail dealer may give away -arrack without being obnoxious to
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this section. Is there any reason in enacting that while a person 1901.
may give away a glass of arrack for nothing, he may not sellFebruary 18.
it for a cent? It seems to me that that provision was inserted for Bosses, G.J.
the benefit of the consumer, and that at the time when this
Ordinance was passed the Legislature were familiar with the
idea that it was the duty of the Government to fix the price of
commodities. In England local authorities were allowed to fix
the price of bread and ale, and it was thought to be within the
province of Government to see that consumers were not charged
more than what the Government thought was a fair price for the
necessaries of life. It seems to me much more probable that
that was the idea which governed the Legislature in fixing the
amount at which rum and arrack were to be sold, rather than any
idea (which seems to me of modern growth) of consulting the
interests of the community by discouraging the sale of these
I am therefore inclined to the opinion that, when the Legis-lature prescribed the price at which arrack and rum were to besold, it fixed the maximum price. But however this may be, itseems to me that in this case at least that in two of the chargeson which the appellant has been convicted there was no evidencewhatever to support the conviction. He was charged and con-victed first of having sold five gallons of arrack to one Kanktraat the price of Bs. 3 per gallon; secondly, he was charged andconvicted for having sold one gallon of arrack for Its. 3 to a mancalled Undiya; and thirdly, he was charged and convicted ofhaving sold one gallon of arrack for Its. 3 to a man called Juan.
Now, as regards the sale to Itankira and Undiya, there wasabsolutely no evidence whatever. Itankira and Undiya were bothcalled. Bankira said: “ I know nothing about it. I simply went" with another man called Sohendirala, on whose land I am living.
“ Sohendirala wanted to buy five gallons of arrack, and I was to“ convey it for him. I purchased nothing, and I do not know what"Sohendirala paid.” Sohendirala was called, and he said: "I" bought five gallons of arrack. I paid Its. 5 a gallon for the“ arrack, but not to this man. I admit that I told the Inspector“ that I had only paid Its. 3 for it, but this I said through fear.”
That is the whole of the evidence of these men. They do notsay, either of them, that the arrack was bought from this man.
There were three people in charge of this tavern, and Sohendiraladistinctly says, " I did not pay this man ”—that is, the appellant.
The Solicitor-General says that if I read between the lines I shallsee that the appellant is guilty of selling these five gallons ofarrack at Its. 3 per gallon to Bankira, because it is clear that this
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February 18.Bonseb, C.J.
man Sohendarala is not to be believed, and that his statement onoath that he paid Rs. 5 a gallon for it must be rejected, and thatI ought to accept his admission to the policeman that he onlypaid Rs. 3 for it. But the difficulty is that there is no evidenceof the payment of the Rs. 3. There is a statement to the effectthat a man who is untrustworthy and not to be believed on hisoath admitted to a police constable that he only paid Rs. 3. Thatis the evidence against the appellant, and therefore as regardsRankira’s case, whatever be the construction of the Ordinance,the conviction cannot be sustained.
Then, as regards Undiya’s case, the only evidence is XJndiya’sown evidence. He says: “ I went to the tavern and bought two“ gallons of arrack from tavern No. 1. I paid Rs. 6 to a man in the'* tavern and got a permit and went away.” Well, as the Magistraterightly says, this witness was unable to identify this man as theappellant. It seems to me therefore that that charge must fail.
Then, as regards the case of the man Juan. Juan says: “ I“ went to tavern No. 1 and I bought one gallon of arrack from“ this accused; a man who was there gave me a permit, and I only” paid Rs. 3 for the arrack.” He admitted that he had neverbought a gallon of arrack before, and did not know what a gallonwas. He produced a permit to himself signed by the appellantto remove a gallon of arrack. So that that is an admission underthe appellant’s own hand that he sold a gallon of arrack to Juan.Then the only question is, whether Juan is to be believed whenhe says he only paid Rs. 3 for it? That certainly raises a rathernice question, for Juan was undoubtedly an accomplice. If itwas an offence to sell arrack at Rs. 3 a gallon, then the man whobought it assisted the man who sold it to commit an offence, forwithout a buyer there could not be this offence of selling. Itrequires two persons to buy and sell, and therefore this man wasan accomplice. The whole case rests simply on his evidencewhether Rs. 3 was paid or a different sum, and the rule is thatthe evidence of an accomplice is not to be relied upon unless heis corroborated in some material particulars, although it is strictlaw that a conviction on the evidence of an accomplice, if believed,is good. But in spite of that the practice has always been forjudges to tell juries that they ought not to convict on theuncorroborated evidence of an accomplice.
The Police Magistrate was of opinion that all the three chargeswere completely proved, and he convicted the accused. Hesays: “ I consider the case amply proved on each count.“ The first two witnesses turned their coats not wisely, but” too well. They err from the desire to disown too strongly.”
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Jt would really seem, as, though disbelieving the first twowitnesses, he jumped to the conclusion that because the firsttwo witnesses were not to be believed when they said thatthe appellant was innocent, therefore he must be guilty. Asregards Juan’s case, I say then that the question as to whetherthe Magistrate ought to have relied on Juan’s evidence is a niceone; but taking the view that I do of the construction of theOrdinance and therefore of the license, it is not necessary for meto go further into that question, and I therefore- set aside theconviction.
I call the Magistrate’s attention to the provisions of section 306of the Criminal Procedure Code as to the drawing up of judg-ments. The judgment which has been drawn up in this casedoes not fulfil any of the provisions of that section. It does notspecify the offence and the section of the law under which theconviction was had, nor is it dated, nor does it name, as it shoulddo, the accused by name.
I do not know what has been done under the conviction, butwhether the fine has been paid or not, I do not see that any timewas allowed for its payment .as provided for by sub-section 5 ofsection 312 of the Code. If the fines have been paid, they mustbe repaid to the appellant.
February 18.Bonbeb, C.J.