184-NLR-NLR-V-47-PERERA-Appellant-and-BENEDICT-Inspector-of-Police-Respondent.pdf
DIAS J.—Per era «. Benedict.
519
1946Present :Dias J.
PERERA, Appellant, and BENEDICT (Inspector of Police),
Respondent.
794—M. C. Colombo, 16,563.
Sale of foreign liquor—“ Sale ” includes any transfer Other than by way ofgift—Traditio longa manu sufficient where article transferred is bulky orheavy—Plea of purchase for private use—Burden of proof—ExciseOrdinance {Cap. 42), ss. 2, 17 (d), 43 {g).
Where the accused -was charged with having sold twelve cases offoreign liquor (brandy) without a licence from .the proper authority inbreach of section 43 (g) of the Excise Ordinance—
Held, that the word “sale” in section 2 of the Excise Ordinancehas not the same meaning it hats in the Sale of Goods Ordinance andincludes any transfer otherwise than by way of gift. Where owingto the weight or bulk of the article sold actual delivery is difficult therewould be sufficient proof of a transfer if there is evidence that thetransferor placed the thing before the transferee with the object oftransferring the possession.
Held further, that where, in a prosecution for sale of foreign liquor, theaccused pleads the benefit of section 17 (d) of the Excise Ordinance theburden is on him, once the prosecution has established sale, to provethat the liquor which he had procured was “ for his private use
^ PPEAX. against a conviction from the Magistrate's Court, Colombo.
N. Nadarajah, K.C. (with him P. Navaralnarajah), for the secondaccused, appellant.
J.O. T. Weeraratne, C.C., for the Crown.
Cur. adv. imil.
November 12, 1946. Dias J.—
The facts of this case are not in dispute. Inspector Benedict of theCriminal Investigation Department received information which causedhim to suspect that the first accused was in possession of stolen liquor.He therefore sent Peon Wilson on February 21, 1946, to a certain placein Darley road to investigate the truth of his information. Wilsonmet the first accused who admitted that he had certain cases of brandyfor sale. He agreed to sell them, but as there was another man in thebusiness, he requested Wilson to see him again on the following day.Wilson reported these facts to Mr. Benedict. Accordingly on February22, 1946, Wilson again saw the first accused and arranged to take deliveryof the brandy at 9 a.m. that day at the Indian Press in Sea street. Wilsonthereafter met the first accused and this appellant at the Indian Presswhen the first accused showed him sample bottles of the brandy.Wilson requested them to wait saying that bis principal would turn upshortly. Mr. Benedict and Sergeant Abeyewardene then met bothaccused. The first accused again produced the samples and informedBenedict of the price of the cases of brandy. The appellant, who waspresent, added that there were twelve cases in all and Benedict agreedto purchase the lot, and requested that the twelve cases should bebrought to the Indian Press for delivery. The appellant agreed and the
520
DIAS J.—Berera v. Benedict.
Inspector and his party left. On their return to the Indian Press halfan hour later, they found that the dozen cases had been brought a3agreed. The Inspector having examined the cases, issued his privatecheque for a sum of Rs. 3,850 which was the price agreed on. Assoon as the appellant took charge of the cheque, Sergeant Abeyewardenedisclosed his identity, took back the cheque, seized the cases of brandyand arrested the two accused.
From the report submitted by Inspector Benedict to the Magistrateit is clear that the authorities were uncertain as to what precise chargeshould be framed against the accused, because the Inspector says thatthe cases of brandy are “ suspected to be stolen property ”. It is,therefore, manifest that the accused were not arrested for an illegal sale,but for being in possession of stolen property. Subsequently, the Policefiled a plaint charging both accused with having sold brandy on February22, 1946, without a licence from the proper authority in breach of section43 (g) of the Excise Ordinance (Chap. 42).
The Magistrate acquitted the first accused and convicted this appellantwho was fined Rs. 1,000 or in default to undergo six weeks’ rigorousimprisonment. From that conviction and sentence the second accusedappeals.
Two points were submitted on his behalf. It was argued in the firstplace that the evidence does not prove “ a sale ”, and in the second place,even if a sale has been proved, that under section 17 (d) of the Ordinance,as it is lawful to sell foreign liquor which the seller has legally procuredfor his private use, the appellant is cleared from liability.
In regard to the first submission, Mr. Nadarajah argues that theevidence clearly shows that the Inspector had no intention whatever ofpurchasing the cases of brandy ; that there never was any consensusad idem between the buyer and seller, the whole thing being a mereruse or trap, and that the charge of selling was an afterthought whenit was discovered that a more serious charge could not be formulatedagainst the appellant. He submits that the evidence does not provea “ sale ” of this brandy.
The only authority cited for the Crown is Pakiampillai v. Merry1,where the word “ sale ” was defined for the purposes of the Control ofPrices Ordinance, 1939. No assistance can be derived from such casesin construing the Excise Ordinance where the word “ sale ” has beengiven a special statutory definition which has been explained in a seriesof decisions which were not cited at the argument of this appeal.
The word “ sale ” in the Excise Ordinance has not the same meaningthis word has in the Sale of Goods Ordinance 2. For the purposes of theExcise Ordinance, the words “ sale ” or “ selling ” are defined to includeany transfer otherwise than by way of gift.—Section 2. The authoritiesshow that where there is a transfer of an excisable article from A to B,the burden of proof is on A to prove that the transfer was by way of gift.If ho fails to do so, the transfer is “ a sale ” within the meaning of theExcise Ordinance—See Lockhart v. Fernando3, and Hunter v. Romiel4In the recent case of Mendis Appuhamy v. Attapattu5 Soertsz J. pointed
1 (1942) 44 N. L. R. 142.* (1925) 27 N. L. R. 229.
• Chapter 70.* (1936) 18 C. L. Rec. 174.
* (1944) 45 N. L. R. 296.
DIAS J.—.Perera v. Benedict.
521 t
out that the word “ transfer ” in relation to movable property is commonlyunderstood as meaning that there was a handing or giving over of thething by one person to another, i.e., an actual physical handing over of amovable.
The solution of the problem which arises in this case is to be foundin the answer to the question whether the prosecution has establishedbeyond reasonable doubt that there was on this occasion “ a transfer ”of this brandy from the appellant to the Inspector. If not, there canbe no “ Bale ”. It may be that the conduct of the appellant mayamount to an attempt to “ sell ” ; but counsel are agreed that an attemptto commit an excise offence is punishable neither under the ExciseOrdinance nor under section 490 of the Penal Code—Kachcheri Mudaliyarv. Mokamadu1.
Obviously, it was an impossibility for the appellant physically to handover twelve cases of brandy to the Inspector. The word “ transfer ”,however, has other meanings besides its common meaning of the actualphysical handing over of a movable. If the transferor places the thingbefore the transferee with the object of transferring the possession, thisamounts to a transfer (longa manu traditio). In this case the depositof the subject matter in the presence and at the disposition of the trans-feree takes the place of physical prehension, and longa manu traditioconstitutes one of the forms of fictitious as distinguished from actualdelivery. It is most appropriate to transactions where, owing to theweightor the bulk of the article concerned, actual delivery is difficult. A resortto it in respect of portable movables would need some very specialexplanation. Indeed, it is obvious that, as in all cases where mentalattitude is not clearly evidenced by physical dealing, the principle oftraditio longa manu must be cautiously applied 2.
What are the facts ? The Inspector and the appellant agreed on theprice, and the twelve cases were brought from their place of deposit tothe Indian Press at the request of the buyer. The goods were examined.The sale was agreed on and the price was paid by cheque. Havingregard to all the circumstances, I am of opinion that there was a “ transfer”of the cases of brandy from the appellant to the Inspector. The mentalattitude of the parties is clearly evidenced by what was said and done..The goods were too bulky and too heavy for actual physical handing over,The transferor therefore brought the cases from where they were storedand placed them before the transferee who, after the price was paid,would become the owner and be free to remove them. The fact that theInspector’s actions were a mere ruse may be relevant on the questionwhether a sale under the Sale of Goods Act took place. It is irrelevanton the question whether under section 2 of the Excise Ordinance therewas or was not “ a transfer ” of the goods from the appellant to theInspector.
There being a “transfer” of these cases from the appellant to theInspector, and it being obvious that this was not a donation by him to theInspector, the transaction is a “ sale ” within the meaning of section 2of the Excise Ordinance. The first submission therefore fails.
1 {1920) 21 N. L.B . 369 Div. Bench.
* 2 Maas dorp (6th ed.) jyp. 23-24 . 2 Burge (1838 ed.) p. 694 : 1 Nathan p. 364.21—H 16792 (8/68)
522
DIAS J.—Per era v. Benedict.
It is next argued that the prosecution, having conceded that theappellant had lawfully purchased these twelve cases of brandy—asevidenced by the receipt or invoice which was found in his possession—it is not an offence for the appellant to sell foreign liquor to the Inspector.“ Foreign liquor ” includes “ all liquor other than ‘ country liquor ’ ”.“ Country liquor ” means liquor manufactured in Ceylon. Obviously,brandy is not manufactured in this Island. Therefore this brandy was“ foreign liquor ”. Section 17 (d) of the Ordinance (as amended by section4 of Ordinance No. 26 of 1938) provides that “ nothing in this sectionapplies to the sale of any foreign liquor legally procured by any personfor his 'private use and sold by him or by auction on his behalf, or onbehalf of his representative in interest upon his quitting a station orafter his decease.” I agree with Crown Counsel that this sub-section is inthe nature of an exception to the criminal liability created by the mainsection. Therefore, once the prosecution has established beyond reason-able doubt that the accused “ sold ” an excisable article without alicence, the burden shifts to the appellant to prove either by a preponder-ance of probability or by a balance of evidence that the foreign liquorwhich he had procured was “ for his private use ”. That the appellantlawfully procured this brandy is not disputed by the Crown; but it iscontended that it was not obtained “ for his private use ” but with theobject of selling it at a higher or “ black market price ”. On this pointthe Magistrate, who saw the appellant give evidence, has decided againsthim.
The appellant stated that he had purchased fifteen cases for an “ AtHome ” he gave after a wedding. He had made a grave miscalculationbecause only three cases were consumed by his guests. He, therefore,told the first accused that he was prepared to sell the remaining twelvecases “ below cost ”. If that story is true or creates reasonable doubtsof the truth of the case for the prosecution, the appellant is entitled to be■acquitted. In my opinion, the Magistrate was justified in rejecting thatstory. An “ At Home ” which caused the appellant to believe thatfifteen cases of brandy, besides other drinks, would be necessary toentertain his guests must have been a function on a very large scale. Theappellant has not stated whose wedding it was that was being honouredwith this “At Home ”. As the Magistrate points out, there should havebeen available at least one of the guests who attended the function andwho would say approximately how many were present and that brandyv/as served to them. It also appears to be highly improbable that thereshould have been such a gross miscalculation leading to a surplus of noless than a dozen cases of brandy at a ceremony where other intoxicantsbesides brandy must surely have been served.
Who is the philanthropist who having twelve cases of brandy on hishands would sell them “ below cost ” ? The Magistrate has come to theconclusion that this liquor was purchased for no other purpose than for aresale at great profit. With that view I am in agreement. I, therefore,hold that the sale having been established, the appellant has failed tobring himself within the provisions of section 17 (d) and his defencefails.
523
DIAS J.—Itosalin Nona v. Perera (S. I. Police).
I affirm the conviction and sentence which is not severe when it isrealized that the appellant is a black marketeer who was detected in theact. The appeal Is dismissed.
Appeal dvtmieeed.