NAGAL.INGAM S.P.J.—Ramaaamy Kona v. Oinigaihtna Police
1954Present: Nagallngam S.P.J.
P.RAMASAMY KONE el al., Appellants, and GINIGATHENAPOLICE, Respondent
S. C. 1,056-1,059—M. C. Nawalapitiya, 9,913
Excise Ordinance—Section 44—Possession of unlawfully manufactured liquor—Proof.
In a prosecution under section 44 of the Excise Ordinance for possessingunlawfully manufactured liquor the Excise Commissioner or the proper licensingauthority must furnish evidence excluding the possibility of the liquor seisedhaving been manufactured under a licence.
^VpPEAL from a judgment of the Magistrate’s Court, Nawalapitiya.
A. B. Perera, with J. C. Thurairatnam, for the accused-appellant.
E. H. C. Jayelileke, Crown Counsel, for the Attorney-General. ,
Cur. adv. vult.
November 25, 1954. Naoaungam S.P.J.—
This is an appeal by the four accused-appellants from their convictionsunder Section 44 of the Excise Ordinance for that they had in theirpossession 600 bottles of a liquor described as “ Jeevanamirtha Asavam ”which the prosecution contends comes under the category of an excisable1 (1951) 1 Ch. D. SOS at 823.
NAOALTKOAM SJP-T.—Ramaaamy Konev. Qinigathena Police405
article and that it had been unlawfully manufactured. The point takenon their behalf ie that there is no proof-that the liquor in the bottles wasunlawfully manufactured.
Under Section 44 of the Excise Ordinance, it is for the prosecutionto establish, firefly, that the excisable article, possession of which is thesubject of the charge, ob liquor containing alcohol, and secondly, that thatliquor had been manufactured without a permit from the proper authority.
The evidence before Court in regard to these elements was furnishedby a report of the Government Analyst. The Government Analyststates that the liquor in the 600 bottles found in the possession of theappellants contains 6*8 per cent, by volume of alcohol. The first element,therefore, is clearly established, namely, it is an excisable article in thatit is a liquor containing alcohol. In regard to the second clement, namely,that the liquor was manufactured unlawfully, there are no factsestablished from which a Court can say that the liquor was unlawfullymanufactured. The report of the Government Analyst merely statesfurther that the bottles of liquor seized do not fall under any one of thefollowing categories :—
(а)Approved brands of imported liquors.
Beers, Wines, Polpala decoction and Tea Ciders manufacturedunder licence issued by the Excise Commissioner.
The report of the Government Analyst does not go further and saythat it is not a liquor which has been manufactured under licence issuedby the.Excise Commissioner. It may be true to say that it is not a Beer,Wine, Polpala decoction or a Tea Cider manufactured under licence issuedby the Excise Commissioner, but that does not negative that it may bea liquor which is neither a Beer, nor a Wine, nor a Polpala decoction,nor a Tea Cider that had been manufactured under licence granted bythe Excise Commissioner. When the Government Analyst said thatthe liquor seized is not manufactured under licence issued by the ExciseCommissioner, he is giving utterance to some informat ion which he hasprobably obtained from the Excise Commissioner himself. The Govern-ment Analyst cannot say of his own knowledge what licences have beenissued by the Excise Commissioner. It is possible that the liquor seizedmay have been manufactured under a licence of which the GovernmentAnalyst may be ignorant. The Excise Commissioner or the properlicensing authority should have been called to furnish evidence excludingthe possibility of .the liquor seized having been manufactured under alioence, so that in the result there is a total absence, of any evidence thatthe liquor seized was unlawfully manufactured.
I find that my brother Swazi J. also arrived at a similar conclusionin Surabid v. Ekanayake 1 in which he observed that ‘ ‘ the Analyst hasnot been called and there is no apparent reason why lie has excludedonly certain liquors and beverages ”. ■ This difficulty was attempted to bo1 (1954) 56 N. L. R. 167.
40(1OHATIAKN J.—rfe Silva v. Mervyn Fernando
Halved by suggesting there may be regulations or notifications specifyingthe various categories of liquor for the manufacture of which licenceshad been issued. Learned Crown Counsel stated that there were no suchregulations and no document published from which it could be gatheredas to what liquors had been authorised to be manufactured. In theabsence of any such evidence, the observations I have made stand firm,namely, that there is no proof that the excisable article, namely, that thebottles of liquor seized had been unlawfully manufactured.
In this view of the matter, the convictions must be set aside, whichI do hereby, and T. acquit the accused.
P. RAMASAMY KONE et al , Appellants, and GINIGATHENA POLICE , Respondent