( 475 ••)
Present: De Sampayo J.
JAYAWAKDENE «. FERNANDO.
651—P. 0. Kalutara, 50,636.
Licensed distillery opened by abalapukaraya during absenceoflicensee—
Admission ofunregisteredservantinto distillery-—Islicensee
responsible f—Are bottles vessels J—Excise rules, _ July 7, 1916—Excise Ordinance, ss. 46 and BO.
Aocused, a licensed distiller locked np the distillery, pnt the keyin a drawer ofa tablein hishouse, left his village.Atnight one
Pedro, registeredservantof theaccused,who was aswella balapu-
Itaraya, gotthe keys fromthe accused’s motherandadmittedinto
the distillery apersonwho was nota registeredservant. The
accused was charged for breach of rules Nob. 21 and 22 published in theGazette (July 7, 1016).
Held, that as the act was done daring the accused’s absence andwithout hisknowledge andauthority, he cannotbesaidtohave
" wilfully ”contravened therule, and that hewasnotinthe
circumstances of the case responsible for the act of Pedro.
Query, whether glass bottles are “ vessels" within the meaning of theterm in rule 6 of the Excise rules (July 7, 1916).
'JI’hk facts appear from the judgment.
Bawa, K.C. (with Canakaratne), for accused, appellant.
Dias, C.C., for respondent.
October 22, 1919. De Sampayo J.—
In my opinion Hie conviction in this case cannot be supported.The accused is a licensed distiller, and he has been charged on twocounts for breach of certain rules framed under the Excise Ordinance.The first charge is that he admitted into the distillery, without thepermission of the Superintendent of Excise, one Justina Fernando,who was not a registered servant, and employed her for the trans-port of arrack, in breach of rules Nos. 21 and 22 published inthe Government Gazette of July 7, 1916. The facts are that theaccused had on the day in question left his house and village withhis wife and did not return till the next day. Before going awayhe locked up the distillery and put the key in the drawer of a tablein his house, which was left in charge of his mother. At night,during his absence, one Pedro Fernando, a registered servant ofthe accused, as well as a balapukaraya (that is to say, a man whobrings his own toddy into a distillery and gets it distilled there),got the keys from the accused’s mother, opened the distillery, andadmitted into it the woman Justina Fernando, who was subsequently
( 470 )
detected in the act of going away from the distillery with two potsof arrack. The question is whether the accused can be held to beguilty of a breach of the rules above mentioned. It is section 45 (6)of the Excise Ordinance that declares breaches of rules to be offences,but it has the limitation that the person to be charged should have“ wilfullycontravened the rules. When the aot complained ofin this case was done during the accused’s absence and withouthis knowledge and authority, he cannot be said to have “ wilfully”contravened the rule. The Police Magistrate has, however, heldthat the accused is responsible for the act of his servant PedroFernando. He probably had in view the provision of section 50 ofthe Ordinance, which enacts—
“ The holder of a license, permit, or pass under' this Ordinanceshall be punishable, as well as the actual offender, for anyoffence under section 43 or section 44 or section. 45 committedby any person in his employ and acting on his behalf as if hehad himself committed the offence, unless he shall establishthat all due and reasonable precautions were exercised byhim to prevent the commission of such offence.”
Now, Pedro Fernando was no doubt in the accused’s employ,but there is no proof that he acted on the accused’s behalf or withinthe scope of his employment. On the contrary, the circumstancesindicate that he was not acting on behalf of his master. Being abalapukaraya he apparently admitted Justina Fernando into thestore on his own account and responsibility. Moreover, I thinkthe accused must be regarded as having exercised all reasonableprecautions to prevent the commission of the offence by his servants,for when leaving the village he looked up the distillery and leftthe keys in a safe place in his house, and Pedro Fernando must betaken to have obtained the keys in contravention of the accused’sintentions. Either of these grounds is sufficient to exempt theaccused from liability. With regard to the first ground, seeJayewardene v. Charles de Silva;1 also Vttam Chand v. Emperor,awhich is a decision on similar provisions in the Bengal Excise Act.
The second charge against the accused is that he kept withinthe distillery certain vessels which were not numbered, and had nottheir capacity marked on them in oil paint as required by rule 6published in the Government Gazette of July 7, 1916. The vesselsin question were glass bottles, two of which are described asdispensary bottles, and the remaining two are ordinary bottles.Each of them contained some arrack. Buie 6 is concerned with adescription of a building to be used for the purpose of a distilleryand With its arrangement, and the last sentence is ” All vesselsin a distillery shall be numbered, and their capacities clearly andcorrectly marked on them in oil paint in English by the licensee.”
» (1916) 19 N. L. R. 218.
I«. L. R. 39. OcU. 344.
( 477 )
I doubt whether glass bottles are here contemplated. I am inclinedto fchiwlr that by “ vessels ” are meant such vessels as are ordinarilyused in the course of distilling or for storing arrack and are capableof being marked with oil paint. If glass bottles are to be effectivelymarked, they must surely be marked with some material otherthan oil paint. However thin may be, it has not been proved thatthese bottles were “ vessels in the distillery.” They were, no doubt,found there when the Inspectors entered, after they saw JustinaFernando removing some arrack. The accused denies that thesebottles were kept by him in the distillery, and he repudiates them,and there is nothing to show that he was responsible for theirbeing in the distillery*. ' The reasonable conclusion is that thesewere bottles jrhieh Pedro Fernando had procured to remove arracksecretly wff$ th^ assistance of Justina Fernando. The Inspector’sevidence supports this conclusion, for he said that the floor ofthe storeroofhT was' .moist with arrack, indicating that the bottleshad just been filled hastily. I think that the charge in respect ofthese bottles has not been established.
The conviction is set aside.
JAYAWARDENE v. FERNANDO