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Present : Maartensz A.J.
MENON v. ABDUL BAHMAN.
139—P, C. Kandy, 27,299.
Opium—Possession by certified consumer—Excess of certified amount—Burden of proof—Ordinance No. 5 of 1910, s. 26.
Where a registered consumer of opium possessed a quantity inexcess of the certified amount the onus of proving lawful possessionis upon him.
PPEAL from a conviction by the Police Magistrate of Kandy.
Navaratnam, for accused, appellant.
April 25, 1929. Maabtensz A.J.—
The accused appeals from a conviction under section 8 (1) of theOpium Ordinance, No. 5 of 1910, for unlawfully possessing 645grains of opium without having obtained a certificate from theGovernment Agent of the Central Province.
The facts on which the accused was convicted were not disputedeither in the Police Court or in appeal.
The accused is a registered consumer, and contends that ho isentitled to the benefit of the exception credited by section 5 (/) ofthe Ordinance No. 5 of 1910.
The section enacts that “ from and after the said date it shallbe unlawful for any person to have or to keep in his possession. . . . any opium except in the following circumstances, thatis to say, (f) when it is in the possession of a registered consumerwho has been supplied with the same in accordance with theprovisions of this Ordinance ”.
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The provision of the Ordinance relating to registered consumers issection 11. Sub-section (2) of this section provides that a certificatemay be issued to a registered consumer stating that he has beenregistered as a consumer of opium, the manner and form of its use,the quantity of opium which may be supplied to him, and the nameor designation and place of business of the authorized vendor bywhom the opium may be supplied.
The exception pleaded by the accused would have been a completedefence if he had a certificate for 645 grains of opium, but hiscertificate is limited to 290 grains.
The appellant’s Counsel suggested that the opium in excess of thequantity allowed by the certificate might have been opium previouslysupplied to the accused and not consumed, and argued that theburden of proving that the accused’s possession of opium in excessof the quantity allowed by the certificate was illegal was on theprosecution.
I am unable to adopt this argument. The exception created bysection 5, clause (/), is an exception in favour of a consumer who hasbeen supplied with opium in. accordance with the provisions of theOrdinance. The accused was found in possession of opium in excessof the quantity which he was entitled to in accordance with theprovisions of the Ordinance, and by section 26 of the Ordinance. “ the burden of proving that the possession …. of opium isnot unlawful by reason of any exception contained in this Ordinancelies on the person alleging the same ”.
The accused has not discharged this onus by proving that theopium of which he was in possession was opium supplied to himunder the' certificate.
I accordingly dismiss the appeal.