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Present : Pereira J-JAYAWARDENE v. APPUHAMY36'6—P. C. Qalle, 4,$3$.
Cancellation 0/ license to sell fermented toddy—licensee should heinformed."
The cancellation of a license to sell fermented toddy most becommunicated to the licensee by the Government Agent. or someperson duly authorized by him to act in that behalf, and thelicensee should be informed of the precise date from which thelicense would be inoperative. In the absence of such communica-tion, the licensee would commit no offence by continuing to sell.
X HE facts appear from the judgment.
H. A. Jayewardene and Arulanandam, for accused, appellant.—There is no evidence oh record to show that the license was in factcancelled. Nor is there proof that .the fact of the cancellation wasduly communicated to the accused. The rent was re-sold as fromMay 1. The accused was, therefore, justified in selling till April 30,P 1 merely indicates an intention, and not a fact.
Garvin, Acting S.-G., for respondent.—The documents producedestablish clearly that the license was in fact cancelled. There isevidence that the accused was informed of the fact by the clerk incharge of the rent work. It has to be presumed that the clerkacted on behalf of the Government Agent in the ordinary courseof his duties as rent clerk.
Cur. adv. vult.
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July 18, 1918. Pebeira J—4918.
In this owe the accused was convicted of keeping and exposing ja2/(^^de?wfor sale toddy, without having a license for that purpose. The v. Appuhamyaccused had in fact a license to sell fermented toddy, but it is saidthat it was cancelled. One Dahaqaike, who describes himself as a"clerk in the Galle Kachcheri in charge of the rent work," .wascalled, and his evidence as recorded shows that he swore to certainfacts and produced certain documents, but omitted to swearpositively to the most important fact, namely, that the accused'slicense was in fact cancelled. Assuming that it may be gatheredfrom the documents produced that the license was cancelled as fromApril 28, what evidence is there that this cancellation was dulycommunicated to the accused ? A cancellation of a license by theGovernment Agent in the privacy of his office cannot, of course,affect the accused,, unless it is duly communicated to him. Was itso communicated ? Document P 1 is an intimation to the accusedthat it was the intention of the Government Agent to cancel hislicense and to re-sell the rent at his risk, unless he paid a certaininstalment of the rent on or before April 28, 1918; and the evidenceof Dahanaike shows that the rent was re-sold to one L. A. de Silvaas from May 1, 1918. Document D 1 purports to be a notice tothe accused informing him that the license has been cancelled “ interms of my notice to'you dated April 11, 1913," that is, documentP 1. Neither the document P 1 nor the document D 1 could havegiven tile accused any idea of the exact date on which, or as fromwhich, the license was to be, or was in fact, cancelled. Anyway,there is no evidence that the document D 1 was served on theaccused before the sale complained of. The Magistrate in hisjudgment says that on April 11 a notice was served on the accusedinforming him that the Government Agent would cancel hie licenseand i;e-sell the rent on April 28. If the document referred to is P 1,
I confess I can see in it no such information. The informationgivenv there is that it was .the intention of the Government Agent tocanselthe license and to re-sell the rent, unless the accused paid onor before April 28 the amount of the instalment overdue. As proofof notice .to the accused, the Magistrate relies on the evidence ofDahanaike, who says : ** I toldihim (i.e., on April 29) of the re-saleand of the. cancellation of the Udugama license." This is hardlydue notice to the accused. There is nothing to show that inmaking the above statement to the accused Dahanaike had anyright to act, or that he in fact professed to act, on behalf of theGovernment Agent. I had notice of this appeal given to theAttorney-General, but the Solicitor-General who appeared beforeme was not able to cite to me any authority in support of theMagistrate’s decision. .
I set aside the conviction and acquit the accused.
JAYAWARDENE v. APPUHAMY