005-NLR-NLR-V-36-JAYATILAKE-v.-DONA-ANA.pdf

Present: Drieberg J.JAYATILEKE v. DONA ANA.
81—P. C. Kalutara, 10,709.
Excise Ordinance—Unlawful possession and sale of toddy—Decoy fails tosupport charge—Proof of sale—Circumstantial evidence.
Where, in a charge of unlawful possession and sale of toddy, the decoyemployed fails to support the charge, the sale may be established bycircumstantial evidence,
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DRIEBERG J.—Jayatileke v. Dona Ana.
PPEAL from a conviction by the Police Magistrate of Kalutara.
Peter de Silva, for accused, appellant.
Wendt, C.C., for complainant, respondent.
Cur. adv. vult.
March 6, 1934. Drieberg J.—
The accused was convicted of unlawful possession and sale of toddy.The facts, as found by the learned Police Magistrate, are as follows:—The Excise Inspector, after searching the decoy Robert Perera, gave himthree marked 10-cent coins and directed him to go to the house of theappellant, buy toddy there and to continue drinking until the search partyentered. When the Excise Inspector entered after a short while, thedecoy had a glass in which was some soddy. By the appellant was a potof toddy which she tilted over and some of it was spilt. What was leftin the pot was 6 drams in excess of the permitted quantity and about abottle of toddy was spilt. In the betel bag of the appellant were foundthe three marked coins.
The decoy, who was the first witness called, did not give the evidenceexpected of him. He admitted being sent with the marked coins, butsaid that when he asked the appellant for toddy she said she had none.He denied that he had given the appellant the coins, that he had a glassof toddy in his hand when the Inspector entered; that the pot of toddywas in the room and that the marked coins were found in the betel bagof the appellant ; he said the coins were with him until he later returnedthem to the Inspector. If this evidence is true, the Excise Inspector andthe others of his party have committed perjury and fabricated a caseagainst the appellant. The learned Police Magistrate has, however,believed their evidence and I think he had good reason for doing so. Thequestion for decision is whether the appellant could be found guilty on thefacts I have stated without the evidence of the decoy that there was infact a sale.
It is now settled that a charge of sale of toddy can be maintainedwithout the express evidence of the decoy that liquor was obtained inexchange for money—Dharmaratne v. Kandaswamy a decision of a Benchof two Judges. The sale may be proved by others who were present orthere may be circumstantial evidence of the sale.
The rule regarding circumstantial evidence and its effect if not explainedby the accused is admirably stated in the judgment of Chief Justice Shawin an American case, Commonwealth v. Webster in Ammer Ali’s Lawof Evidence (8th ed.), p. 784—“ where probable proof is brought of astate of facts tending to criminate the accused, the absence of evidencetending to a contrary conclusion is to be considered, though not aloneentitled to much weight, because the burden of proof lies on the accuserto make out the whole case by substantive evidence. But when prettystringent proof of circumstances is produced, tending to support the
* 35 N. L. R. 206.
DRIEBERG J.—Jayatileke v. Dona Ana.
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charge, and it is apparent that the accused is so situated that he couldoffer evidence of all the facts and circumstances as they existed, and show,if such was the truth, that the suspicious circumstances can be accountedfor consistently with his innocence and he fails to offer such proof, thenatural conclusion is that the proof, if produced, instead of rebutting,would tend to sustain the charge. But this is to be cautiously applied,and only in cases where it is manifest that proofs are in the power of theaccused, not accessible to the prosecution
Another point in such cases is that the presumption will be drawn morereadily in proportion to the difficulty of proving the fact by postiveevidence, and to the facility of disproving it or of proving factsinconsistent with it if it did really occur (Sub-Inspector of Police v.RajalingamJ).
Applying these principles to this case, one has to consider whetherpretty stringent proof has been given of circumstances tending to supportthe charge. I think it must be held that such proof does exist. Thereis the fact that there was toddy in the hand of the decoy and the appellanthad with her toddy of an unlawful quantity, that she endeavoured to spillit to avoid proof of the quantity in the pot, and that the marked coinswere found on her.
There are circumstances which distinguish this case from Dharmaratnev. Kandesamy *, where it was held that the evidence was insufficient.
, There the decoy denied the sale as in this case and the only evidence wasthat the decoy was found with two packets of ganja and the markedmoney was with the accused ; no ganja was found in the possession ofthe accused, while in this case the accused had with her toddy in anunlawful quantity. Further the accused there did not deny the pos-session of the marked coins but explained them by stating that he hadgot them from one of the witnesses for the prosecution in payment ofa debt.
In Rodrigo v. Karunaratne3 in which Akbar J. held the evidence insuffi-cient, it was proved that the marked coin was found in the possession ofthe accused and the decoy had a coconut shell of toddy. The accusedwas a toddy contractor; it does not appear whether he had any toddywith him at the time, but if he had, no inference adverse to him could bedrawn from the -fact.
Here the appellant does not seek to explain the suspicious factsagainst her and show that they are consistent with her innocence, but shedenies these facts exist; but these circumstances have been proved andshe can only succeed by explaining them. The facts proved in this caseare similar to those in Rex v. Valley *. In the latter case, Sir PhilipMacdonell C.J. said that on these facts there was sufficient evidence onwhich the Court could if it was so minded infer that a sale had takenplace.
*31 N. L. B. 157 on p. 159.
35 N. L. R. 206.
3 (1932) 34 N. L. R. 366.
(1932) 1 C. L. W. 227 ; and 263 P. C. GaUc 411 ; S. C. M. of 29th May,.1933.
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Charles v. Themanis.
I do not think that the recognition of the sufficiency of such evidenceas this need lead to the danger referred to by Akbar J. in Rex v. Valley{supra). Where there is available direct evidence of sale to a decoyI doubt whether a Court would permit the prosecution to ask for a con-viction on the inference to be drawn from the possession by the accusedof the marked coin and the possession by the decoy of the excisable articlewhile withholding from the Court the express evidence of the sale. Thefact that the case was presented in such an artificial manner would be asufficient ground for rejecting it (Wijeyratne v. Rubesinghe *). The decoyin this case was called and denied that he was found with a glass of toddyand that the coins were in the accused’s betel bag. The Court, believingthe other witnesses on this point, rejected his evidence and proceeded toconsider whether the evidence of these witnesses raised a presumption ofguilt which was not explained by the appellant.
Mr. de Silva asked me to consider the sentence passed. I have done soand I cannot say that it is excessive. The appeal is dismissed.
Affirmed.