103-NLR-NLR-V-58-R.-A.-DISSANAYAKE-Appellant-and-D.C.-A.-SURAWEERA-Police-Sergeant-Responde.pdf
T. S. FBRXAXDO, J.—Dissanayake v. Suratceefa1956Present:T. S. Fernando, J.
R. A. niSSAJSTAYAKE, Appellant, and T>. G. A. SURAWEHRA(Police Sergeant), Respondent
S. C„ 565—M. C. Colombo, 2G,9101A
Excise Ordinance—Section 44—Charge of possessing u'.daufully manufactured liquor('" Cider ”)—Quantum of evidence.
Where n liquid in a pot was found to contain U'2% of alcohol within a l'airlyshort interval of time after it was discovered—
Held, that it could bo reasonably presumed that at the timo of the detectionitself there could have been no appreciable difference in the percentage ofalcohol in the liquid.■
Held further, that, where the evidence establishes that the liquor is not anapproved brand of imported liquor hut is tea cider, no reasonable doubt canarise as to whether it is liquor mnnnfacl ii'i*d in Ceylon.
./-PPEAT. front a judgment of the Magistrate’s Court. Colombo.
C. tie S. lYijet/eralne, for the accused-appellant.
P. B. IV ickraman ay a he, Crown Counsel, for tho Attorney-General. ,
Cur. adv. %ndl.
September 12, 195G. T. S. Fernando, J.—.
The appellant was convicted on a charge of possession of 2 gallons and12 drams of unlawfully manufactured liquor called “ Cider ”, punishableunder section 44 of the Excise Ordinance. Counsel for the appellantdid not canvass the finding of the learned magistrate on the question ofpossession, but argued that what the appellant was in possession of hasnot been proved to be a liquor within the meaning of the ExciseOrdinance.
The detection was made at about 6.30 p.m. on loth March 1950 and,according to the evidence, two bottles from the pot which containednearly fourteen bottles were taken as samples, and to each of these twobot tles were added 25 grains of salicylic acid in'order to prevent fermen-tation. The salicj'lie acid was not available to be added at the placewhere fixe detection took place but only after the pot containing theliquor had been brought to the Police Station and its contents measured.The Analyst found the liquid in the bottle ho examined to containG-2% of alcohol. Jfe was satisfied that there was a sufficient quantityof salicylic acid to arrest further fermentation. There is no evidenceas- to the interval of time between the detection and the adding of thesalicylic acid, and learned counsel argues that there is no proof beforethe court that- the liquid in the pot at the time of detection had G-2%
of alcohol. The burden of proving that this was liquor within the meaningof the Excise Ordinance being upon the prosecution, he contends thatthe prosecution has failed to discharge that burden and that the appellantshould therefore have been acquitted. I am unable to agree with thiscontention. The detection was made in a coconut garden at No. 265,Nawala Road. As soon as the detection had been made and the appel-lant had been searched at the spot, the appellant and the pot werebrought to the Wolikade Police Station which is not a great distanceaway from the place of detection. The prosecution has proved that tholiquid discovered in the appellant’s possession has been found withina fairly short interval of tune to contain 6'2% of alcohol. In this stateof affairs it could reasonably bo presumed that at the time of detectionitself there could have been no appreciable difference in the percentageof alcohol in the liquid in the pot. I cannot also ignore tho absence ofany effort on the part of the defence to cross-examine the Analyst onthe question of the likely percentage of alcohol at the time of detection.In the circiunstances established in this case I am of opinion that theprosecution proved that the liquid found in the pot referred to abovewas liquor within the meaning of the Excise Ordinance.
The prosecution relied in this case on a report from the GovernmentAnalyst. The terms of this report are indistinguishable from the termsof the report of the Government Analyst produced in the case of EbertI'&mado v. Goonetcardene1 winch came up for hearing before me andin which I ruled that the sole evidence of a report of the GovernmentAnalyst in these terms is insufficient to discharge the burden of proofthat lies upon the prosecution in a case where the charge is one ofpossession of unlawfully manufactured liquor. In the present case,however, there is other evidence, viz., the evidence of Inspector Dharma-ratne and Police Constable Wick ram asekere, that the pot containedTea cider. Tea cider is a liquor for the manufacture of which a licencecan be obtained from the Excise Commissioner-—vide Excise Notifica-tions Nos. 419 and 420, published in Gazelle 10,2S1 of 10.S. 1951. Notonly lias the appellant no licence to manufacture liquor, but the evidenceshows that no licence for the manufacture of tea cider has yet been issuedto anyone. Neither Dharmaratne nor Wiekramasekere was cross-examined on the question of their competence to express an opinionon the question whether the liquid was tea cider, and their evidencehas been accepted bjr the learned magistrate. If this was tea cider, thenthere is no reason why any reasonable doubt should arise whether thiswas a liquor manufactured in Ceylon. The Analyst’s report negatives thisliquor being a liquor manufactured under a licence issued by the ExciseCommissioner. The only reasonable conclusion one can therefore reachis that this was unlawfully manufactured liquor. •
I dismiss tho appeal.
{1956) 5S -V. L. R. 22,