040-NLR-NLR-V-22-LAWRENCEPILLAI–v.-KIRIHAMY.pdf
( 144 )
1920.
Present: Dias A.J.
LAWRENCEPILLAI v. KIRIHAMY.
280—P. C, Anuradhapura, 49,379.
Excise Ordinance—Several persons jointly transporting over one gallon o£arrack in a cart.
There is nothing in the Excise Ordinance to prevent several men.joining together and buying a one-third of a gallon each andconveying the aggregate quantity together.
^J^HE facts appear from the judgment.
L. Pereira,, for the accused, appellant.
June 11,1920. Dias A.J.—
The accused, appellant, has been fined Rs. 150 for possessingand transporting a certain quantity of arrack in excess of theprescribed quantity under the provisions of the Excise Ordinance,
1 (2910) U N. L. R. 45.
( 146 )
No. 8 of 1912. According to the prosecution, the complainant, whois an arachchi, seized the accused when he was driving a cart fromthe direction of Trincomalee to Anuradhapura, and it is said thathe thenfound in the cart, under some straw, five large bottles and twohalf bottles containing one gallon and four and three-quarters dramsof arrack. The quantity a man is permitted to possess or transportis only one-third of a gallon. The defence was that the accusedand four others had hired this cart and gone to Trincomalee to buyprovisions for the Sinhalese New Year which was approaching, andthat each of them bought a bottle or two q| arrack and broughtthem in the cart. It was said that each man’s bottle or bottleswere kept in separate places in this oart, but if what they statedis true, it makes no difference whether all the bottles were kepttogether or separately, because there is nothing to prevent severalmen joining together and 'buying a few bottles of arrack andconveying them in the most convenient manner. The questionthe Magistrate had to decide was whether the explanation givenby the accused was true. The accused himself gave evidenceand called several witnesses to support him, one of them wasMr. Navaratnam, the recordkeeper of the Anuradhapura Courts,and another was a Moorish peon of the Courts, and the otherwas Mr. Kahanda, the native writer. According to these witnesses,the complainant really brought up three accused before the Court,and he incidentally mentioned to Mr. Navaratnam what theaccused were charged with, and also that he found the bottlesin separate places in the cart, and that besides the accused therewere three other men in the cart. That strongly supported theaccused’s defence. But the Magistrate has given a very curiousexplanation of this evidence. He does not say that he disbelievesthese respectable witnesses called by the accused, but he says thathe must accept the complainant’s statement because it was madeunder the sanction of an oath, and that he must reject these allegedstatements of these three witnesses because they had not beenfnade under the sanction of an oath. But that is not the point.If the arachchi had made such an admission in the presence ofthese witnesses, it is quite sufficient to show that the evidencegiven by the arachchi in the Court was false, and that is the opinionI entertain after reading his evidence. It seems to me that thearachchi originally intended to charge three people, but afterwardswhen he divided the one gallon and four drams by three hediscovered that each individual did not possess more than theprescribed quantity, and hence the prosecution of this one manalone, namely, the driver of the cart. In these circumstances theaccused was entitled to be acquitted, and his appeal is thereforeallowed.
1920.
Dias A.J.
Lawrence.-
piUai v.Kirihamy
15
Appeal allowed.