148-NLR-NLR-V-39-SAMARASINGHE-v.-BANDA.pdf
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HE ARNE J.—Samarasinghe v. Banda.
1938Present: Hearne J.
SAMARASINGHE v. BANDA.121—P. C. Kandy, 57,295.
Excise Ordinance—Unlawful manufacture of fermented toddy—Breach of con-dition of licence—Burden of proof—Ordinance No. 8 of, 1912, s. 50.
The second accused, the holder of a sweet toddy licence, was chargedalong with his tapper the first accused with having (a) unlawfully manu-factured fermented toddy, and (b) with a br.each of the condition of hislicence.
It was established that fermented toddy had been found in a vesselattached to the tree which the second accused was authorized to tap andthat no anti-ferment had been used. The first accused was acquitted.
Held, that the burden was upon the second.accused under section 50 ofthe Excise Ordinance to show that he had taken precautions to preventthe toddy from fermenting.
A. PPEAL from an acquittal by the Police Magistrate of Kandy.
E. H. T. Gunasekerq, C.C., for complainant, appellant.
Cur. adv. vult.
April 12, 1938: Hearne J.—
The second accused was the holder of a sweet toddy licence and he wasCharged along with his tapper the first accused with having committed—
the offence of unlawfully manufacturing fermented toddy, and
with breach of the condition No. 5 of his licence.
The conditions reads : —
“ Fermentation in any degree whatsoever, of all unfermented toddymanufactured or drawn under this licence shall be effectually andpermanently prevented ”.
The first accused set up the defence of an alibi and was acquitted.Counsel for the second accused thereupon invited the Magistrate to acquitthe second accused as well, which the Magistrate didv for the reason as hestates that a case arises against the licence owner only after his agent hasbeen convicted. In his opinion, therefore, it would appear that the merefact of the acquittal of the first accused entitled the second accused alsoto an acquittal. This is. in my opinion an erroneous view of the law. Itwas established that fermented toddy had been found in a vessel attachedto the kitul tree which the second accused was authorized to tap for sweet
Imbuldeniya v. Romanis Appuhamy.
537
toddy ; that no anti-ferment had been used, and that the second accusedwas present when the fermented toddy was found on the tree. Noattempt was made by the second accused to account for his possession oftoddy or his conduct in connection with it. He offered no proof that hetook any steps to comply with condition No. 5 of his licence. In thesecircumstances, the Magistrate in my opinion should have convicted thesecond accused even if the first accused for other reasons was entitled tobe acquitted.
In the unreported case S. C. No. 490, P. C. Kandy, 55,287, two accusedwere charged with the manufacture of fermented toddy. The secondaccused was acquitted, while in regard to- the first the evidence was to theeffect that toddy was found on. a kitul tree belonging to him and hispossession was proved, and the sole question to which this Court held thetrial Judge should have addressed himself was, whether the accused undersection 50 of the Ordinance had accounted satisfactorily for his possessionor his conduct in connection with it. As this case concerns the allegedoffences of manufacturing fermented toddy and of committing a breachof the condition of the licence I would refer to the case S. C. No. 87, P. C.Gampola, 23,451, in which it was held that it was incumbent upon anaccused person in circumstances similar to the circumstances in thiscase to show that he had taken precautions to prevent the toddy fromfermenting.
I will allow the appeal and direct that this case be sent back to theMagistrate for the purpose of recording convictions against the secondaccused on the two charges before the Court and thereafter to passsentence.
Set aside.