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Present: Jayewardene A.J.
LOCKHART v. FERNANDO.689—P. C. Kalutara, 8,888.
Excise Ordinance—Transfer of toddy otherwise than by way of gift—
Burden of proof—Ordinance No. 8 of 1912, s. SO.
Where a toddy collector was charged under section 43 (A) of theExcise Ordinance with the transfer of toddy, and his defence wasthat the toddy was given by way of gift.
Held, that the burden of proving that the transfer was by wayof gift was upon the accused under section 50 of the ExciseOrdinance.
^^PPEAL from a conviction by the Police Magistrate of Kalutara.
H. Peries, for accused, appellant.
Grenier, C.G., for the respondent.
December 15, 1925. Jayewabdbne A.J.—
In this case a “ toddy collector ” has been convicted under section43 (k) and 45 (c) of the Excise Ordinance, 1912, and sentenced topay a fine of Rs. 15. He appeals on certain grounds of law. It is
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submitted for him that he cannot be convicted under section 45 (c)for wilfully doing or omitting to do anything* in breach of any ofthe conditions of the permit or pass issued to him inasmuch asthere are no conditions attached to the permit issued to him. Theobjection to his conviction under section 45 (c) is, in my opinion,sound and must be upheld. It is also contended that he cannotbe convicted under section 43 (A) because he has not sold anyexcisable article, in this instance toddy, but has, if at all, given awaytoddy by way of gift. According to the facts proved in this case itappears that when the Excise peon went to the land where certaintrees were being tapped for toddy he found the “ collector,” theaccused, surrounded by a number of people and pouring toddyfrom a barrel into a tin which was held by a woman. Now there isnothing here to show whether the accused gave the toddy for aconsideration or not. The terms “ sale ” or <c selling ” is definedin the Excise Ordinance, section 3, sub-section (12), and includesany transfer otherwise than by way of gift. There is no doubt thatthe accused was transferring an excisable article.
The question is whether he was doing so “ otherwise than by wayof gift.” Section 50 of the Excise Ordinance requires that in anyprosecution under section 43 it should be presumed until the contraryis proved that the accused person committed an offence under thatsection in respect of any excisable .article for the possession ofwhich, or for his conduct in connection with which, he is unable toaccount satisfactorily. The result of this section is to throw uponthe accused the burden of proving that the transfer was by way ofgift, if his contention is that the transfer was in fact a gift. Theprosecution need only prove that there was a transfer of an excisablearticle and such a transfer would in law amount to a sale under theOrdinance. The accused has given evidence, and he denies that hewas pouring toddy from a barrel into a tin at the time he is said tohave committed the offence. He has not proved that the transferwas by way of gift.
I would therefore hold that the accused has committed an offenceunder section 43 (A), and that the conviction under that section iscorrect.
I would therefore dismiss the appeal.
LOCKHART v. FERNANDO