DRIEBERG J.—Mendis v. Kaithan Appu.
1935Present: Drieberg J.
MENDIS v. KAITHAN APPU.
990—P. C. Gampaha, 31,713.
Charge—Conviction under Excise Ordinance—Failure to set out particulars ofExcise Notification—Fatal irregularity.
Failure to set out in a charge under the Excise Ordinance the section,of the Ordinance and the notification for breach of which the accusedwas charged is a fatal irregularity.
A PPEAL from a conviction by the Police Magistrate of Gampaha.
J. R. Jayewardene, for accused, appellant.
Pulle, C. C., for complainant, respondent.
February 25, 1935. Drieberg J.—
This appeal was partly argued before me on December 20 last. Thehearing was adjourned as Mr. Pulle desired time for the consideration ofthe point raised. The vacation and my taking the Assize Court preventedthe hearing being resumed earlier. The charge against the appellant isbased on the acceptance by him of a packet containing a large quantityof ganja sent to him by post.
He was tried and convicted on a charge of possessing an excisablearticle, to wit, seven pounds of ganja, without a licence, in breach ofsection 16 (3) of the Excise Ordinance, No. 8 of 1912, thereby committing
Ambalavanar v. Kurunathan.
an offence punishable under section 43 (a) of that Ordinance. Section16 (3) does not make the possession of ganja an offence but empowers theGovernor by notification to prohibit the possession, by any person or classof persons, of an excisable article such as ganja either throughout thewhole Island or in any local area, absolutely or subject to prescribedconditions.
By Excise Notification No. 46 published in the Government Gazette ofMay 7, 1915, His Excellency the Governor in Executive Council absolutelyprohibited throughout the whole Island the possession of ganja, everyadmixture and preparation of it and every intoxicating drink or substanceprepared from any part of the hemp plant (Cannabis sativa or indica).I notice that this notification was not under the powers conferred bysection 16 (3), but under section 55 which deals with medicated articlescontaining ganja. It is not necessary, however, to consider this proclama-tion, for it is contended for the appellant that the conviction cannot standfor section 16 (3) under which he has been convicted creates no offence ofthe possession of ganja. This is so, and the only question is whetherI shall allow a retrial or set aside the conviction. This is a question whichis often before the Court and Mr. Jayewardene has referred me to severalcases in which this Court has declined to order a retrial. I need onlyrefer to the most recent of them, Marambe v. Kiriappal, where Sir P. J.Macdonell C.J. said that to send a case back for retrial in such circum-stances as these would encourage slackness and inexactitude on the partof the prosecutors. Mr. Pulle asked that an exception be made in thiscase in view of the gravity of the offence. The quantity of ganja is nodoubt great. But the more serious the case the stronger is the call forcare and precision in bringing it before the Court.
The appeal is allowed; the conviction is set aside and the appellantacquitted.
MENDIS v. KAITHAN APPU