051-NLR-NLR-V-19-JAYEWARDENE-v.-CHARLES-DE-SILVA.pdf
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71916.
Present : Ennis J.
JAYEWARDENE v. CHARLES DE SILVA.
376—P. C. Galle, 1,938.
. Excise Ordinance—Servant of licensee of arrack distillery removing arrackwithout a pass—Is licensee liable l
The provisions of section 50 of the Excise Ordinance arc 'meantfor cases in which the servant was acting in the ordinary courseof his duty, and, whilst doing so, transgressed some – provision ofthe Ordinance, owing to the licensee nothaving takenproper
precautions to. prevent it. The ■ fact that a servant of a licenseeof an arrack distillery removed some arrack without a pass is notsufficient to convict the licensee.
.fJpHJS facts appear from the judgment.
. J. 8. Jayewardene, for appellant.
Dias, C. C., for the Crown.
April 20,. 1916. Ennis J.—
In this case the accused, who is the licensee of an arrack distillery-,was charged with having caused his servant Amadoris to remove'some arrack without a pass.
It has been proved that Amadoris removed arrack without apass, but I cannot see any evidence that the accused caused himto do so. Mr. Dias, for the Crown, referred me to section 50 of the.Excise Ordinance, under which the holder of the licence, as well as.the actual offender, is punishable if the offence has been committedby a person in his employ and acting on his behalf, unless he shallestablish that all due and reasonable' precautions were exercised"by him • to prevent the commission of the offence. This seems to
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have' been in the mind o£ the learned Magistrate when- convictingaccused, for he has held that accused produced no evidence to showthat due and reasonable precautions were taken. But beforeaccused can be expected to do this, there must be evidence that theoffending servant was acting on behalf of his master. In thiscase there is no such evidence, but, on the contrary, a very strongpresumption that he was not so acting. Amadoris was caughttaking away a bottle of arrack about midnight. This does notcreate any presumption that he was acting on behalf of his master,TmT strongly suggests that Amadoris was acting in the matter. forhis own pleasure and on his own behalf.
In my opinion the provisions of section 50 were meant for casesin*which the servant was acting in the ordinary course of his duty,and, whilst doing so, transgressed some provision of the Ordinance,owing to the licensee not having taken proper precautions to preventft: In this case there is no suggestion that accused abetted theoffence committed by Amadoris, and I am of opinion that in thecircumstances of the case the master cannot, be implicated underthe provisions of section 50.
I accordingly set aside the conviction.
i9ie:
Eitnis J.
J ayawardencv. Oharlede Silva
Set aside.