071-NLR-NLR-V-45-MENDIS-APPUHAMY-Appellant-and-ATAPATTU-Respondent.pdf
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SOEHTSZ J.—Mendis Appuhamy and Atapattu.
1944Present: Soertsz J.MENDIS APPUHAMY, Appellant, and ATAPATTU, Kespondent.
059—M.G. Gampola, 6,841.
Arrack—Purchase of arrack with intention of selling to another—Transfer formoney consideration—Excise Ordinance, s. 2.
Where a person buys arrack at the request of another and then transfers-it to the latter for a money consideration.
Held, that the transaction amounted to a sale within the meaning ofsection 2 of the Excise Ordinance.
A PPEAli from a conviction by the Magistrate of Gampola.
No appearance for accused, appellant.
Jansze, C.G., for complainant, respondent.
February 20, 1944. Soertsz J.—
The facts from which the question for decision on this appeal arises arethese:The appellant is a hotel-keeper in Dolosbage. Excise Guard
No. 231 visited this hotel from time to time concealing his real identityand passing off for a baas on a neighbouring estate. He appears to havebroached the subject of procuring some arrack and to have been told thatthere were estate labourers who would sell their ration of arrack at a highprice. In due course the ^Excise Guard wrote letters to the appellantrequesting him to buy arrack for him and the appellant wrote back thathe could buy it at Us. 10 a bottle. A few days later a “ raid ” wasarranged. The Acting Commissioner gave the. Guard ten five-rupeenotes to enable him to buy five bottles. The Guard went to the hoteland the appellant had two bottles in readiness for him. That was all hehad been able to get. The Guard handed over four of the ten five-rupee notes and got in return two bottles of arrack. These facts are notdisputed but it is contended that the transaction between the Guard andthe appellant was not a sale but that it amounted to no more than to a
1 25 Criminal Appeal Reports, p. 49.
Puspakanthy and Dr. Balendra
297
aase of a servant or agent going into the market and buying for theemployer or principal some article. In other words that the appellantoccupied the position nf a buyer and not that of a seller—a buyer buying.for a principal and handing over to him the article bought. Now, thiscontention has to be examined not in the light of the word sale as it isgenerally understood in contracts of purchase and sale, but in view of themeaning given to it in the Excise Ordinance. In that Ordinance section 2which is the section of interpretation, “ sale ” or “ selling ” is said toinclude “ any transfer otherwise than by way of gift ”. The appellantdoes not pretend that this was a gift and the only question is whetherthere was a transfer from the appellant to the Guard of the two bottles.There can be no doubt at all that there was a transfer on September 18from the appellant to the Guard in the sense in -which the word transferis commonly understood in relation to movables—there was a handing orgiving over of the thing. In this instance the evidence shows that the■appellant had had the bottles for a day or two in reserve for the Guard.In other words, the appellant purchased the goods for himself, with ofcourse, the Guard in mind. He had sufficient control over them in lawto be able lawfully to change his mind and to dispose of them as he choseto do. He could drink the arrack, give it as a gift, throw it away orexchange it for money or seme other commodity. He had paid his ownmoney for it. The Guard had no legal claim to it whatever such as,for instance, a master who sends a servant out to buy him a bottle ofarrack would have. I had occasion a few days ago to consider a case ofthat kind and I held that the transaction was not a sale by the accusedin that case because all he had done was to take money given him bjanother with a request to fetch him a bottle of arrack and he had goneand fetched it. This is an entirely different case that I am dealing■with. Here the appellant buys arrack—it may even be not forhimself so far as his intentions are concerned—none the less he hasdominion over that arrack. He gives it over to the Guard and getsin return twenty rupees—it is immaterial whether this amount re-presented what he had paid himself or more or less—the transaction isunequivocally a sale.
The appeal fails. It is dismissed.
Appeal dismissed.