100-NLR-NLR-V-34-RODRIGO-v.-KARUNARATNE.pdf
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Rodrigo v. Karunaratne.
1932Present: Akbar J.
RODRIGO v. KARUNARATNE.
855—P. C. Balapitiya-, 17,513.
Excise Ordinance—Sale of fermented toddy—Evidence of decoy—OrdinanceNo. 8 of 1912, s. 3 (12).
Where, in a charge of selling fermented toddy without a licence, it wasproved that a marked coin was found in the accused’s possession and thedecoy was found with a coconut shell of toddy,—
Held, that the evidence of a sale was insufficient.
^^PPEAL from a conviction by the Police Magistrate of Balapitiya.
Rajaphkse, for accused-appellant.—Decoy’s alleged statement toInspector, which he denied at trial, cannot be used as substantive evidenceof the facts against the accused. See Rex v. Silva
1 30 N. L. R. 193.
AKBAR J.—Rodrigo v. Karunaratne.
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There is no proof of a sale or even of a voluntary transfer of the toddy.The accused says the toddy was taken forcibly by the decoy. Therefore,the presumption under section 3 (12) of Excise Ordinance does not arise,and the onus is on the prosecution to prove a sale.
Schokman, C.C. (with him Wendt,C.C.), for the complainant-
respondent.—Once the toddy is found with the decoy and the markedmoney with the accused, the onus is on the accused to prove there was nosale or in other words that the transfer of the toddy was a gift. Seesection 3 (12) of Ordinance and Lockhart v. Fernando.1
On identical facts the Supreme Court has decided the conviction canbe maintained. See 814-815 P. C. Jaffna, 8,124—S. C. Min. of February 9,1932*
April 26,1932. Akbar J.—
The appellant was charged with selling fermented toddy without alicence and he was fined Rs. 75. According to the evidence a decoywas sent ahead with a marked 50-cent. piece to buy toddy from theaccused, who is a toddy contractor. The decoy, however, did not supportthe prosecution case and the prosecution case was only left with theevidence of the Excise Inspector and of the Police Inspector, neither ofwhom saw the sale. This being a criminal case, it is incumbent on theprosecution to prove the sale. All that the accepted evidence proves wasthat the decoy had a coconut shell of toddy in his hand and a pot full oftoddy behind a shed and that a marked 50-cent piece was found in theaccused’s waist. I do not think this is sufficient evidence to prove a sale.Mr. Schokman cited a case of my brother Maartensz, but I regret I amunable to follow this case as an authority. If full effect is given to thecase cited, a decoy need not give evidence in an excise case. The veryreason why decoys are called to give evidence is because there must .hesome evidence to prove a sale. The mere fact that a marked coin isfound in the accused’s possession and the decoy is found with a coconutshell of toddy cannot, I think, in a criminal case be held to be sufficientevidence of a sale. It was for this reason that I postponed the case toenable Mr. Schokman to cite English authorities on. the point, but he wasunable to do so. I am therefore compelled to set aside the convictionand acquit the accused.
Appeal allowed.
*S. C. 814-815—P. C. Jaffna, 8,124.
February 9, 1932. Maartensz A.J.—
Appeal No. 814 is by the accused in this case who was convicted of selling brandywithout a licence from the Government Agent, an offence punishable undersection 41 (b) of the Excise Ordinance, No. 8 of 1912.
The evidence which the Police Magistrate has believed is that on the day in ques-tion, the 29th of May last, one Anjalingam was sent by Excise Inspector Ferdinandswith a marked Rs. 5 note and Re. 1 note with instructions to purchase a bottle or a pintof brandy from the accused. Anjalingam went to the accused’s house followed by anExcise Guard and later by Excise Inspector Ferdinands and Excise Inspector Guna-sekera. The signal for them to rush in was the flashing- of a torch. On seeing thesignal they rushed in and found Anjalingam with a bottle Of brandy in his hand.In a box in the accused’s house was found a bottle of brandy and a pint of brandy.In another small wooden box was found the Rs. 5 note and the Re. 1 note.
i 27 N. L. R. 229.
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AKBAR J.—Rodrigo v. Karunaratne.
Anjalingam in his evidence before the Police Magistrate denied going to theaccused’s house at all. This denial appears to be in conflict with a statement whichthe witness made to Mr. Moses, Justice of the Peace, on June 10. It is unnecessaryfor me to consider whether this statement to Mr. Moses was admissible in evidence asthere is sufficient evidence without the evidence of Anjalingam to establish that theaccused sold a bottle of brandy to Anjalingam. That evidence is the evidence ofthe. Excise Inspectors who saw Anjalingam in possession of a bottle of brandy andthe-marked notes in a box in the accused’s possession. But the statement made tothe Justice of Peace was admissible in this way, to show that Anjalingam made adifferent statement to the Justice of the Peace and that therefore his evidence tothe Police Magistrate was not worthy of credit so as to make the evidence of theExcise Inspectors unreliable. Apart from that, it is not evidence against the accused.However, as I have said, the evidence which the Police Magistrate has acceptedestablishes the case against the accused, even if Anjalingam’s evidence is eliminatedfrom the record. I accordingly affirm the conviction and sentence passed on theaccused.