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Present: Mr. Justice Wood Renton.
PERERA v. GOMESZ.P. G., Negombo, 12,118.
Keeping open licensed premises after hours—Intention—Evidence ofsale —Ordinance No. 12 of 1891, s. 39, sub.-sec. (1). ■■
In. a prosecution for keeping a tavern or premises licensed forthe sale of intoxicating liquor open between the hours of 8 p.m.and 5 a.m., contrary, to the provisions of sub-section (1) of section39 of Ordinance No. 12 of 1891, it must be shown that such tavernor premises were kept open for the sale of intoxicating liquor.
PPEAL from a conviction by the Magistrate (V. P. Redlioh,Esq.) under sub-section (1) of section 39 of Ordinance No. 12
H. A. Jaycwardene, for the accused, appellant.
No appearance for the respondent.
July 6, 1909. Wood Renton J.—
In this case the appellant has been convicted, under section 39 ofOrdinance No. 12 of 1891, of having kept open certain premiseslicensed for the sale of intoxicating liquors, called the “ Restaurant
1 (1909) 12 N. L. K. 20(3.* (1907) 17 Madras Law Journal 345.
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Bar,” between 4.15 a.m. and 5 a.m. On the appellant’s behalfMr. Jayewardene argued, first, that as the premises in question arelicensed as a Restaurant, there was nothing [see section 39 (2)] toprevent the appellant from keeping the premises open, providedalways—a circumstance of whioh there is no proof—that he did notsell intoxicating liquor during prohibited hours; and, in the secondplace, that, even if the appellant’s premises should be regarded as amere licensed tavern and not as a restaurant or an hotel, he couldnot properly be convicted under sub-section (1) of the section inquestion, unless it was shown that the premises were kept open forthe sale whioh the Ordinance prohibits. I am very much disposedto agree with Mr. Jayewardene’s argument in support of his firstpoint; but I.do not think it necessary to decide that questionexpressly now, since I am of opinion that, on the evidence beforethe learned Police Magistrate, the appellant ought not to have beenconvicted under sub-section (1), which deals with licensed taverns.There was nothing to show that any sale of intoxicating liquor hadin fact taken place on the occasion in question. In his evidence theappellant expressly stated that he had opened his premises merely forthe purpose of allowing his sister, sister-in-law, and his cousin to goout so as to catch an early boat at Negombo. So far as I can see,there is no suggestion that this evidence is false. On the contrary,the appellant appears to be a perfectly respectable man, and I think,under the circumstances I have stated, he ought not to have beenconvicted. I do not propose to go through the cases cited in thecourse of the argument, but I desire to refer simply to the followingauthorities which, I think, support the view of the law I have nowtaken: Murphy v. Mayilmganam,1 Van Hovien v. Gander,* and theunreported decision of Withers J. in P. C., Cliilaw, No. 8,992.®
On these grounds stated the conviction is set aside and theappellant is acquitted.
* Ram. (1872-1876) 228.* (1894) 3 S. C. R. 28.
3 8. G. Min.. December 4, 1895.
PERERA v. GOMESZ