076-NLR-NLR-V-25-MISSO-v.-PERERA.pdf
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1?24.Preamt: Ennis, De Sampayo, and Porter JJ.
MISSO w. PERERA.P. C. Gampaha, 33,076.
Excise Ordinance—Sale of arrack for a higher price than that appearingon the signboard at the tavern—Prosecution for breach of condition—Is proof of strength of arrack necessary ?
Accused sold arrack at a rate higher than that appearing on thesignboard exhibited in the tavern and was charged for breach ofcondition 3 (3) of the General Conditions applicable to all ExciseLicenses (Excise Notification No. 133 ; Gazette of May 25, 1923).
Held, that it was not necessary for the prosecution to prove thestrength of the arrack sold.
r I ''HE Itinerating Police Magistrate of Colombo stated a case-J- under section 353 of the Criminal Procedure Code asfollows:—
Case stated by the undersigned under the provisions of section 353of the Criminal Procedure Code, 1898.
At the Itinerating Pplice Court of Colombo, held at Gampaha* beforethe undersigned on February 20, 1924, J. Paul Perera, the above-nameddefendant, was charged as follows :—
That he did on October 25, 1923, at arrack tavern, Weligampitiya,sell arrack at a higher rate than the current rate appearing on the sign-board, to wit, at Rs. 15* 14 a gallon, whereas the rate appearing on thesignboard was Rs. 13*92 a gallon, in breach of condition 3 (3) of theGeneral Conditions applicable to all Excise Licenses appearing in ExciseNotification No. 133 and published in the Government Gazette No. 7,330of May 25, 1923, read with section 24 of Ordinance No. 8 of 1912, andthereby committed an offence punishable under section 43 (A) of theExcise Ordinance, No. 8 of 1912.
At the hearing of the said charge it was proved that the accused didsell arrack at a rate higher than that appearing on the signboardexhibited in the tavern of which he is a tavern-keeper. The current rateof sale appearing on the signboard was Rs. 13*92 per gallon of arrack,and in a gallon there are 76,800 minims or drops of arrack. The accusedsold a certain quantity of arrack for 75 cents, which, when measured bythe complainant then and there, was found to contain only 3,805 minimsor drops. The rate as worked out from this brought the price atRs. 15*14 per gallon of arrack, which was about 9 per cent, higher thanthe current price as exhibited on the signboard. I considered that thisexcess was far too much to be accounted for by the loss of arrack in theprocess of transferring from cask to bottle at the sale or from the bottlein which it was sold into the measuring glass or bottle at time of measure-ment, and that only about 2 or 3 per cent, should be allowed for this lossand any error in calculation.
2. It was thereupon contended on the part of the defendant that itwas incumbent on the part of the complainant to prove the strength ofthe arrack sold, and that inasmuch as he did not test the strength of the
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arrack sold or exhibited for sale by Syke’s hydrometer, and was,therefore, not in a position to state what the strength of the arrack soldwas, the case must fail, and the defendant acquitted of the chargeagainst him.
In support of this contention the judgment of His Lordship the ChiefJustice in P. C. Hatton, case No. 9,652 (S. C. No. 661), was cited, andalso the decision of His Lordship Mr. Justice Porter in a case in appealfrom this Court.
But I being of opinion that the judgment in P. C. Hatton, caseNo. 9,652, was not applicable to this case inasmuch as this prosecutionwas for an infringement of general condition 3 (3) applicable to allexcisable licenses for the year 1923-24, whereas the prosecution in theHatton case was for an infringement of condition 23 of the ArrackBent Sales Conditions, held that proof of the* strength of arrack soldwas not necessary. The two conditions are entirely different. Underthe latter condition the sale price of arrack is fixed with reference to itsstrength, and therefore proof of strength is necessary when a prosecutionis launched for an infringement of this condition. But under the formergeneral condition 3 (3) there is no reference whatever to the strength ofarrack. It is an offence to sell arrack at a rate higher than that appear-ing on the signboard, irrespective of the strength of the arrack sold orexhibited for sale. It will be noted that it is an offence under generalcondition 2 to omit to have a signboard containing various parti-culars including the current rate of sale.
This was the opinion I held in case-No. 33,074 of this Court,where the facts are the same as in this case, and which is forwardedherewith,* but in appeal His Lordship Mr. Justice Porter held that thecase was covered by the judgment of His Lordship the Chief Justicereferred to above, and set aside the conviction.
Since then my attention has been drawn to a judgment of His Lord-ship Mr. Justice Ennis dated January 15, 1924, in P. C. Colombo, caseNo. 1,814 (S. C. No. 748), which entirely supports the view I have takenin case No. 33,074 above referred to. I accordingly convicted thedefendant in this case, and sentenced him to pay a fine of Rs. 25.
The question for the opinion of this Court is whether the saiddetermination in this case was correct in point of law, and what shouldbe done in the premises.
V. COOMABASWAMY,
February 20, 1924.Itinerating Police Magistrate,
Western Province.
The conditions referred to in the judgment were as follows :—
[Extract from the “ Ceylon Government Gazette,’* No. 7,330 ofMay 25, 1923.]
The Excise Ordinance, No. 8 of 1912.
Excise Notification No. 133.
General Conditions applicable to all Excise Licenses.
2. A signboard must be affixed to the front of each licensed distillery,brewery, wholesale warehouse, arrack renter’s storehouse, bottlingwarehouse, or tavern (including beer and porter) showing the numberand nature of the license, the name of the licensee, and, in the case ofcountry liquor taverns, the current rate of sale. .These particularsmust be legibly printed in English or the local vernacular. The license
1924.
Mieso v.Perero
* Not reproduced.
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1924. and a printed copy of these conditions must be hung up in a conspicuous
place within all licensed premises. In the caso of taverns the license
Miaao v. must show the names of the salesmen.
Perera
3.(3) No licensee or renter and his tavern-keeper shall sell any
liquor at a price higher than the current rate appearing on the sign-board.
[Extract from the “ Ceylon Government Gazette,*’ No. 7,362 ofNovember 23, 1923.]
Arrack Rent Sale Conditions, 1923-24.
23. The grantee (a) shall not sell any arrack whether by dram or bythe “ bottle ” or gallon at a lower price than at the rate of Rs. 9*60 pergallon at 32 underproof ; and (b) shall not sell arrack in any one parti-cular tavern at a cheaper rate by “ bottle ’* or gallon than at the rateby the dram at which he sells arrack in that tavern. Nor shall thegrantee sell any arrack at a. higher rate than at the rate of Rs. 13*92 pergallon at 32 underproof, provided that the Government Agent may, forspecial reasons and on the application of the grantee, permit the sale ofarrack at a rate higher than Rs. 13*92 per gallon at 32 underproof asthe Government Agent may determine.
V. M. Fernando, C.C., for the Crown.
J. N. Sandarasegera, for the accused.
March. 26, 1924, Ennis J.—
This is a reference by the learned Magistrate of Gampaha undersection 353 of the Criminal Procedure Code. The learned Magistrateappears to have been under the impression that there was a conflictof decisions, and he accordingly made the reference. It appearsthat in a case before him the accused was charged under condition 3,sub-condition (3), of the General Conditions applicable to all ExciseLicenses, published in the Gazette of May 25,1923, with selling arrackat rates above the current rate appearing on the signboard. Onthe facts the learned Magistrate has found that the accused sold at arate which worked out at Rs. 15* 66.per gallon, while the rate on thesignboard was Rs. 13*92 a gallon. The learned Magistrate con-victed the accused, and that conviction is quite in order, for undercondition 3, sub-condition (3), there is no occasion to prove thestrength of the liquor sold*. The learned Magistrate appears to havebeen under the impression that regulation 23 of the Arrack RentSale Conditions, published in the Gazette of November 23,1923, hadsomething to do with the case. There are a number of decisioiis ofthis Court to the effect that in a prosecution for a breach of thatcondition, the prosecution must prove the strength of the arrack.There is, however, no occasion to consider the question in the presentcase, as it is not applicable to the circumstances under review. The
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learned Magistrate himself seems to have been of that opinion, butunder pressure of a number of decisions appears to have made thepresent reference.
The conviction of the learned Magistrate is right.
De Sampayo J.—I entirely agree.
Porter J.—I agree.
The following are the judgments referred to by the learnedPolice Magistrate:—
661—P. C. Hatton, 9,652.
R. If. Pereira, for the appellant.
Dias, C.C., for $he Crown.
November 3, 1923. Bebtbam C.J.—
In this case I have no doubts as to the facts. I agree with the conclusionsof the learned Magistrate. But Mr. R. L. Pereira has taken a teclmical point,and this I must allow. The charge against the accused was that he hadinfringed an Excise Regulation, No. 23 of the Arrack Bent Sale Conditions,1922-23, published in the Ceylon Government Gazette of June 16, 1922.That regulation prohibits the grantee from selling at a higher price than at therate of Rs. 9 * 60 per gallon at 32 degrees underproof. Mr. Pereira submits thatin a criminal case the prosecution, must prove every essential part of tho charge,and he urges that it is essential to prove the strength of the arrack. Thisappears to be the case. Mr. Dias admits that it is the duty of the arrackseller to adjust his price to the strength of the arrack sold ; that he is given acertain latitude, and he may sell arrack as weak as 35 degrees underproof, but ifhe does sell arrack at this low strength, he must either increase tho quantitysold or decrease the price per dram. It seems to me, therefore, that when anExcise Inspector visits a tavem for the purpose of inspecting the rate at whichthe arrack is sold, he should test the strength of the arrack sold by Syke’shydrometer, and the case for the prosecution is not complete unless evidence ofthe strength of the arrack dealt with is given. No evidence of this sort wasgiven in the present case. Mr. Dias urges me to send the case back, in orderthat the facts may be ascertained. But I think it is now too late to ascertainfacts. Mr. Pereira’s technical point, being therefore good in law, must beadmitted. The appeal is accordingly allowed.
748—P, C. Colombo, 1,814.
De Jong and R. C. Fonseka, for the appellant.
MuUunayagam, C.C., for the respondent.
January 15, 1924. Ennis J.—
This is an appeal from a conviction for the sale of arrack at a price beyondthe current rate. The conviction is under sub-section (3) of condition 3 in theGeneral Conditions applicable to all Excise Licenses, published in the Gazetteof May 25, 1923. That sub-section reads :—
“ No licensee or renter and his tavern-keeper shall sell any liquor at a pricehigher than the current rate appearing on the signboard.”
It appears that “ liquor ” is defined for the purposes of the Ordinance as anyliquor containing alcohol. Therefore, the only matter which it is necessaryto prove for the purpose of conviction under this section would be that acertain quantity of “ liquor ” had been sold at a price beyond the day’s pricementioned on the signboard. No question would arise as to the quantity .ofwater in the liquor, but only as to the quantity of liquor sold in relation to theprice. In the circumstances the conviction is right, and I see no reason to~ nterfere with the conviction or sentence, and dismiss the appeal.
1924.
Ennis J.
Miaso v.Perera