113-NLR-NLR-V-17-PAULICKPULLE-v.-PEDRICK.pdf
( 860 )
1914.
Present: Pereira J.
PAIILICKPTJLLE v. PEDR3CK.
458—P. C. Colombo, 46,305,
Arrack—Excisable article—Ordinance No, 8 of 1912—*■* Bottle r* notstandard measure.
In a prosecution under the Excise Ordinance for the illicit sale of anexcisable article, where the alleged excisable article was described bythe witnesses as arrack, they must be presumed to have meant " arrack Min the ordinarily accepted signification of that term in the Englishlanguage, that is to say, an ardent liquor distilled from the juice of,inter alia, the coconut palm. Arrack in that sense is an excisablearticle under the Ordinance.
In order to support a conviction under the Ordinance for the illicit.possession of arrack, there should be clear proof that the quantitypossessed exceeded a third of a gallon.
fJlHE facts appear from the judgment.
Bawa, K.C., for accused, appellant.—There is no evidence toshow that what the accused sold is an “ excisable article. ” Thecomplainant speaks of “ arrack. ”“ Arrack ” is not an “ excisable
article, ” and possessing arrack is not punishable. Excisable articleis defined, but arrack is not mentioned in the definition.
* {1909) 12 N. L. R, 196,
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The accused cannot be convicted for being in ^possession of an 1914,excisable article over a gallon ; the evidence is tha? he had eightbottles, the size of the bottles is not indicated.vTptdrich
Ganeheratne, C.C. (with him van Langenberg, K.G., S.-Q.)t forthe respondent.—Arrack is an excisable article. See Christoffelsz v.
Per era.1 It follows also from the Excise Notification of January29, 1913, whereby the possession of more than a third of a gallonof arrack is prohibited, that arrack is an excisable article withinthe meaning of the Ordinance.
The eight bottles were produced before the Magistrate, and hewas satisfied that they contained more than one-third of a gallon.
The accused never contested this fact in the lower 'Court.
Cur. adv. vult.
June 16, 1914. Pereira J.—
The accused has been convicted of two offences, which are setforth in the formal conviction sheet as follows: (1) Possessing eightbottles of arrack in excess of the quantity prescribed in section 16of Ordinance No. 8 of 1912, and Excise Notification 5 made undersection 4 of Ordinance No. 8 of 1912 ; and (2) selling an excisablearticle, to wit, arrack, in contravention of Ordinance No. 8 of 1912.
As regards the first act mentioned above, it appears to me to be nooffence at all under the Ordinance, and I'shall deal with it later. Asregards the second act, it has been contended that there is nothingto show that arrack is an excisable article, as it is not mentionedor defined in the Ordinance as an excisable article.. No doubt theOrdinance makes no mention of arrack, but the expression “ excisablearticle ” is defined to mean, inter aliat any “ liquor as defined by theOrdinance,” and "liquor” is defined by the Ordinance to mean,inter alia, all liquid containing alcohol. The witnesses speak of thething alleged to have been sold by the accused as arrack, and it haebeen argued that there is no evidence fo show that the substancealleged to have been sold answers to the description of “ excisablearticle ’* as defined by the Ordinance. It seems to me that the bestevidence that the substance answers to that description is that it isreferred to by the witnesses as " arrack. " Of course, a person maybe so familiar with arrack as to be able to say, judging from the mereappearance, taste, or smell of a given liquid, that it is arrack. Theterm " arrack, ” whatever its derivation may be, has now passed asa word into the English language. It occurs in every English dic-tionary, and its meaning is.given as " an ardent spirit used in the Eastprocured from the fermented juice extracted from the flower of thecoco and other palms as well as from rice and jaggery.*’ Now, undersection 57 (9) of the Evidence Ordinance, the Court is required to takejudicial notice of the meaning of English words. That being so,
* [1913) 17 AT. L. B. 177.
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when the witnesses in giving evidence used the word “ arrack, '* itwasy not necessary that they should at the same time; say what theymeant by it. The Court was bound to understand it in its ordinarysense and meaning. It was not even necessary that the Court shouldkndw how “ arrack>f was obtained or distilled.- So long as the'word meant an ardent spirit, that is to say, a distilled: alcoholicliquor, it was an excisable article under the Ordinance.
There is, in my opinion, sufficient evidence in the case to show thatthe accused sold arrack, and I see no reason to disturb the convictionunder section 43 (h) of the Ordinance.
As regards the offence of possessing an excisable article, the con-viction is of possessing 41 eight bottles of arrack in excess of thequantity prescribed, ” but the evidence is that no more than eightbottles were found in the possession of the accused. Under; section16 of the Ordinance, and His Excellency's notification under section4, dated 29th January, 1913, a person is entitled to possess withouta license any quantity of arrack not exceeding a third of a gallon.Now a 44 bottle ? is not a standard measure. It merely means ahollow vessel of a particular shape for holding liquids. It may beof any size, and there is nothing to show that possessing eight bottlesis by itself an offence^ The arrack alleged to have been found inthe possession of the accused does not appear to have been dulymeasured, and, as contended by the accused's counsel, there isnothing to show that the accused possessed a quantity exceeding athird of a gallon. The Excise Inspector says: 44 He is allowed topossess a third of a gallon without a permit. That is equivalent tobottles. ” I can make nothing of this evidence. Even had hementioned the number of bottles that he had in mind, there wasnothing to show that he meant bottles of the size of those allegedto have been found in the possession of the accused.
1 set aside the conviction under section 43 (a) of the Ordinance,affirm the conviction under section 43 (fe), and reduce the sentenceto a fine of Rs. 100. (Two weeks' rigorous imprisonment in default.)
Varied.