013-NLR-NLR-V-49-SELLIAH-Excise-Inspector-Appellant-and-DE-SILVA-Respondant.pdf
JAYETJXEKE J.—Selliah v. de Silva.
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1947Present :Jayetlleke J.SELLIAH (Excise Inspector), Appellant, and DE SILVA, Respondent.S. C. 877—M. C. Balapitiya, 57,212.
Excise Ordinance (Cap. 42), s. 17 (d)—Sale of brandy—When saleable withoutlicence—-Quitting station.
Under tho proviso (d) to Section 17 of the Excise Ordinance a person whoprocures foreign liquor for his own use con sell it only when ho quits his station.Pcrera r. Renali^t (1040) 47 -V. L. R. 010 referred to.
y^PPEAL against an acquittal from tlie Magistrate’s Court, Balapitiya.
T.S. Fernando, C.C., for the complainant, appellant.
G. P. J. Kurt-tulasuriya (with him Conrad Dias.) for the accused,respondent.
Cur. adv. vult.
December 3, 1947. Jaystileke J.—
This an appeal by the complainant with the sanction of the Attorney-General against an oder made by the Magistrate acquitting the accused.
The complainant, who is an Excise Inspector, charged the accusedunder section 17 of the Excise Ordinance (Cap. 42) with having sold aglass of brandy for Rs. 3 to one Gnanachw^n without a licence from theproper authority.
The accused admitted that he had in his possession two bottles ofbrandy which, he said, he purchased for his own use on medical advice,but he denied the sale.
The Magistrate accepted the evidence of Gnanadasan with regard tothe sale, but, with much reluctance, he held that under section 17 (d) ofthe Ordinance the accused had the right to sell the brandy. He did sobecause he considered himself bound by the judgment of this Court inPerera v. Benedict1. I may state at once that that judgment has notdealt with the question under consideration, and that it is not applicableto the present case.
Section 17 reads :—
“ No excisable article shall be sold without a licence from the-
Government Agent :
Provided that—
(a) a person having the right to the toddy drawn from any tree maysell the same without a licence to a person licensed to manu-facture and sell toddy under this Ordinance or to a presonlicensed under this Ordinance to manufacture arrack orvinegar from toddy ;
(1946) 47 N. L. R. 519.
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JAYETILEKJS J.—Selliak v. de Silva.
(*>) a licence for sale in more than one district of a province shall begranted by the Government Agent of the Province and notby the Assistant Government Agent;
a licence for sale in more than one province shall be granted by
the Excise Commissioner ;
nothing in this section applies to the sale of any foreign liquor
legally procured by any person for his private use and soldby him or by auction on his behalf, or on behalf of his re-presentatives in interest upon his quitting a station or afterhis decease. ”
Two views on proviso (d) have been submitted to me. Learned CrownCounsel contended that in enacting section 17 (d) the object of thelegislature was to give a person the right to sell any foreign liquor, whichhe had procured for his own use upon his quitting a station and also togive to his legal representatives the right to sell it after his death. Hesaid that, if the words “ upon his quitting a station ” are changed fromtheir existing position and inserted after the words “or by auction onhis behalf ”, there can be no ambiguity in the proviso at all. He invitedmy attention to the case of The King v. Ettridge 1 in which Darling J.said :—
“ We are of opinion that we may, in reading a statute, reject words,transpose them, or even imply words if this be necessary to give effectto the intention and meaning of the legislature ; and this is to beascertained from a careful consideration of the entire statute. ”
Mr. Xurukulasuriya, on the other hand, contended that there was noambiguity in the language of the proviso and that, according to theliteral meaning of the words used, a person had the right to sell foreignliquor procured by him for his private use, and that his representativesin interest, too, had the right to sell such liquor when he left his stationor when he died. He said that the expression “ representatives ininterest” is used in proviso (d) in two senses ; it means “ attorneys ”when read with the words “ upon his quitting a station ” and “ legalrepresentatives ” when read with the words “ after his decease ”.
The Excise Ordinance has been framed to regulate the import, export,transport, manufacture, sale and possession of intoxicating liquor and ofintoxicationg drugs. Section 17 prohibits the sale of any excisable articlewithout a licence from the Government Agent. There are two exceptions(a) and (d). The former gives a person having the right to draw toddyfrom any tree, authority to sell it without a licence to a person who has alicence to manufacture arrack or vinegar from toddy ; the latter is theone which I have to interpret. I have to consider whether the legislatureintended to give a person the unrestricted right to sell foreign liquorwhich he procured for his own use, having prohibited in the openingwords of section 17 the sale of such liquor without a licence. When oneconsiders the Ordinance as a whole, and the purpose for 'which it waspassed, I cannot bring myself to believe that it ever so intended. Itseems to me that the object of proviso (d) was to give a person who
1 (1909) 2 K. B. D. 24 at page 28.
WUEYEWARDENE J.—The King V. Jayewardene.
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procured foreign liquor for his own use the right to sell his stock when hequitted his station This -view is supported by section 20—3 (a) of theBengal Excise Act 5 of 1909 which reads :—
“No license shall be required for any of the following sales, namely:—
The sale of foreign liquor lawfully procured by any person forhis private use—when such sale is made by such person himselfor on his behalf upon his quitting a station, or on behalf ofhis representatives in interest after his decease ; ”
The interpretation contended for by Mr. Kurukulasuriya will, in myopinion, reduce the Ordinance to a nullity. I think this is eminently acase for the application of the principle that the manifest intention of aStatute must not be defeated by too literal an adhesion to its priciselanguage.
I would, accordingly, set aside the order made by the Magistrate, andsend the case back with the direction that the Magistrate should enteran order convicting the accused and pass such sentence on him as hethinks fit.
Order set aside.