005-NLR-NLR-V-58-M.-EBERT-FERNANDO-Appellant-and-E.-L.-GOONEWARDENA-Respondent.pdf
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1956Present:T. S. Fernando, J.M.EBERT FERNANDO. Appellant, mid E. 7,. ClOONEWARDENA,.RespondentS. O. 1,'200—JI. C. Colombo South. Oo.o’ZG
Excise Ontinance—.Section 4t—Charge oj -possession of unhtujtillg manufactured
liquor-—Quantum of evidence.
Tn a prosecution for possession of unlawfully manufactured liquor in breachof section 44 of the Evidence Ordinance, the sole evideneo relied on by the com-plainant was a report of the Government Analyst- that the liquor in question didnot full within tlio categories of (1) approved brands of imported liquors and (-)liquors manufactured under licences issued under tlio Excise Ordinance.
Held, that llio CJovvriiincnt Aiialyssl’s report mis not sufficient lo pruvo beyondreasonable iloubt that the liquor in question was unlawfully mu luifcclureil.
Ai'I’KAb from h judgment dI'iIic Mngistrate's Court, Colombo .South.
,y. J{. Lvl-aiiiyr.. i’ur t lie* accused appellant.
/'. Wtcmoi/ir/hc. Crown Counsel, I'm- the. Attorney-General.
Cur. tide. vu/t.
August 21, I hub. T. S. Fekxaxdo, J.—
– 'J'Jic apijelhint was convicted in the Magistrate's court oil a charge ofjmsscssion of l I gallons uf unlawfully manufactured liquor in breach ofsection 44 of the .Excise Ordinance. The question of possession is notcontested on this appeal, but learned counsel for the appellant arguesthat there was no proof before the .Magistrate’s court that the liquorproduced there and marked P.2 was unlawfully manufactured. Theburden of establishing that the liquor was unlawfully manufactured lay'upon the prosecution, and to discharge this burden it relied upon a reportof the Government Analyst, the relevant portio) is of which are reproducedbelow :—
“ The analytical characteristics of P.2 indicate that- P.2 is afermented liquor but not a distilled spirit.
The characteristics of P.2 arc not similar to those of samples ofeither approved brands of imported liquors or liquor manufacturedunder licences issued under the Excise Ordinance.
In my opinion P.2 is a liquor which does not fall under Die followingcategories :—
Approved brands of imparled liquors.
Jaquors manufactured under licences issued under the Excise
Ordinance.’’
The prosecution had 1<> exclude the possibility (a.) that P.2 was a,liquor lawfully manufactured in the Island and {b) that it was foreignliquor, i.e., liquor manufactured outside the Island ami imported here.The Analyst’s report excludes possibility (a) referred to above, but doesit exclude possibility (b) 1 The report shows that the liquor in questionwas not of an ” approved brand ” of imported liquor. What is meantby approved ” is not explained in* the Analyst’s report or in the oralevidence in the case. It has been suggested in the course of the argumentbefore me that ‘"’approved ” means approved by Government, and thatit is only approved brands of foreign liquor that may lawfully be importedinto the Island. It is not fanciful, however, to suggest that there maybe in this country imported liquor that is not of an ‘"’approved ” brandin the sense suggested at the argument. For example, there may certainlybo liquor of an unapproved brand smuggled into this country. Such
liquor would not be unlawfully manufactured liquor as contemplated inthe Excise Ordinance. Whatever offence a person may be committingby possessing such liquor lie cannot be said to be possessing unlawfullymanufactured liquor.
Learned Crown Counsel referred me to the decision of my brotherSansoni in tlie case of Fernando v. O'ooneivardene'1 where a report of theCovernment Analyst similar to that produced in tliis case was the onlyevidenee relied on by the prosecution to establish a charge of possessionof unlawfully manufactured liquor. Iji that case the point that hasnow been taken was not raised, and my brother was not called upon toconsider it.
Por the reasons indicated above, T am of opinion that the prosecutionfailed to discharge the burden that lay upon it. to establish beyond areasonable doubt that the liquor in question was unlawfully manufactured,and I therefore set aside the conviction and sentence and direct that theappellant be acquitted.
.-1 pputl alhnr. d.
1 Ll'Jor JY. L. 11. IT.