081-NLR-NLR-V-04-QUEEN-v.-FONSEKA.pdf
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QUEEN v. FONSEKA.D. C., Negombo, 2,150.
1900.
January If
and 29'
Arrack Ordinance, No. 10 of 1844, s. 13—Punishment in excess of power ofDistrict Court to impose—Want of jurisdiction.
The District Court has no jurisdiction to try under section 13 of theOrdinance No. 10 of 1844 the offence of keeping a-place adapted forthe purpose of distilling arrack.
T
HIS was a prosecution of the accused before the DistrictCourt of Negombo for keeping his premises adapted for the
purpose of distilling arrack, contrary to the provisions of section13 of Ordinance No. 10 of 1844.
Upon the indictment being presented, counsel for the accusedcontended that the evidence recorded by the committing Magis-trate showed that the accused was in possession of 68 gills ofarrack and 100 gills of toddy without a license, and that thepenalties under section 13 of the Ordinance No. 10 of 1844,imposable for the keeping of the premises adapted for distillingarrack and for being in possession of distilled arrack, would gobeyond the jurisdiction of the District Court.
The District Judge upheld this contention and discharged theaccused.
The Attorney-General appealed against this order of discharge.Rdmanathan, S.-G., for appellant.—Section 13 of OrdinanceNo. 10 of 1844, for a breach of which the accused was committedfor trial, makes him liable, if found guilty, to a “ fine of“ £100, or to imprisonment, with or without hard labour, to six" months, and to a further fine of five shillings for every gallon of“ spirit which may be proved to have been so distilled.” Theindictment does not charge the accused with being in possessionof arrack or toddy. That may form the subject of another case,or it may not be instituted at all. Under section 13 it is opento the District Judge to pass, in respect of the offence named inthe indictment, a sentence quite within his own jurisdiction, asprovided in section 11 of the Criminal Procedure Code of 1898.
There is nothing on the face of the indictment to show that theDistrict Court has no jurisdiction.
Dornhorst, for respondent.—When the evidence comes to beheard, the District Judge may find that more than one offencehas been committed. Supposing he is minded to inflict a fine offive shillings for every gallon of spirits distilled, such fine,together with the fine of £100, will make the punishment in
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1900.Januaryand HO.
excess of 'bis jurisdiction. Therefore, such a case should not have17 been committed before the District Judge. On the analogy ofthe decision given in P. C., Galle, 84,167 (Grenier, 1873, P. G.Cates, p. 39), the District Court must be held to have no jurisdictionto try a case like the present one.
Cur. adv. vult.
29th January, 1900. Browne, A.J.—
The order of the Court below must be affirmed, for it seems tome that so long as any offence is punishable with a fine whichmay exceed Rs. 6,000, it is not with the jurisdiction of a DistrictCourt to try it.
The offence for which the respondent was here indicted wasthat he did keep utensils adapted for the purpose of distillingarrack, contrary to the provisions of Ordinance No. 10 of 1844, inbreach of section 13 of that Ordinance, which imposes a liabilityof a fine of one hundred pounds or imprisonment, with or with-out hard labour, for six months, and to a further fine of fiveshillings for every gallon of arrack which may be proved to 'havebeen so distilled, &c,
If, therefore, proof were given that a single gallon had beendistilled, the respondent would at once have been liable in lawand in fact to pay £100 5s. 0d., which is more than the DistrictCourt had jurisdiction to impose.
The liability in law existed, the enforcement of it beingcontingent upon the proof of fact being given. The latter questionwould not have arisen when the indictment was being presented;only the liability in law would fall to be considered then, and soin P. C., Galle, 84,167 (Grenier, 1873, P. C. Cases, p. 39), it was heldthat a Police Court had no jurisdiction when the liability was to afine of five pounds, and a further sum of five shillings for everygallon illegally possessed.