100-NLR-NLR-V-16-SETHUKAVALAR-v.-MUTTUVELU-et-el.pdf
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Present: Wood Benton J.
SETHUKAVALAE v. MUTTUVELU et el.
461-463—P. C. Batticaloa, 34,561.
Sale of arrack under proof—Liability of renter for act of salesman.
Where a salesman in a tavern sold arrack containing less than27 per cent, of proof spirit—
JHeld, that the renter was guilty of an offence under section 38of Ordinance No. 12 of 1891, although he had no knowledge of thecondition of the arrack.
fj THE facts appear from the judgment.
A. St. V. Jayewardene, for first and second accused, appellants.
H. J. 0. Pereira, for the third accused, appellant.
No appearance for respondent.
July 14, 1913. Wood Eenton J.—
The first and second accused-appellants have been convicted assalesmen, and the third accused-appellant has been convicted asrenter, of the sale of spirituous liquor containing less than 27 percent, of proof spirit, in contravention of section 33a of OrdinanceNo. 12 of 1891. I will deal first, and briefly, with the case of thesalesmen. That they were salesmen at the tavern in questionand that they were selling under-proof arrack are facts as to whichthere is no serious contest. Their main defence at the trial andhere in appeal has been that they acted without mens tea, and thatthe under-proof character of the arrack was due to the fact that thetavern had been inundated for several days by floods, and thatthe barrel containing the arrack in question had, without any faulton their part, been saturated with water. The learned PoliceMagistrate has rejected this defence on the evidence, and 1 am notprepared to say that he is wrong. The evidence does not showthat the barrel in question was exposed to water under circum-stances which can account for the under-proof condition of thespirit contained in it. Moreover, the peon who. seized the barrelsaid that it was perfectly whole at the time of its seizure. Betweenthe rime of its seizure and the subsequent proceedings in Court ithad in some way been perforated. There is also the circumstancethat, although the floods had abated by the middle of January, and
1913.
1913.
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Woodrenton J.
Sethukavalar
c. Muttuvelu
the barrel was not seized till the middle of March, it contained theunder-proof arrack still. The appeals of the first and secondaccused must‘fail.
As regards the third accused, the case stands in a somewhatdifferent position. He is the renter, and the Police Magistratehas found that he had no knowledge of the condition of the arrack,and that so far as he waB concerned there had been no wilfulmisconduct. Does that circumstance operate as a defence? ThePolice Magistrate has answered that question in the negative, andI think that he is right. It has been held by the Supreme Courtin the case of Peries v. Perera,1 and the decision is spported bynumerous English authorities, that while the master is generallynot criminally liable for the act of his servant, such a liability maybe imposed by the Legislature, and has been imposed by the languageof section 40 of Ordinance No. 10 of 1844, which provides that “ itshall not be lawful for any person to draw any toddy ” in certainspecified ways. Section 33a of Ordinance No. 12 of 1891 commenceswith a prohibition of the same character. It says that “ it shallnot be lawful for any person to sell, or to expose or to keep forsale,” under-proof spirit. Mr. H. J. C. Pereira, however, who arguedthe appeal, sought to distinguish these two enactments on theground. that section 33a deals only with a mode of adulteration,while sections 31, 32, and 33, which deal specifically with adultera-tion, clearly recognized good faith as a defence. This is an ingeniousargument, and it impressed me considerably at first. But whensection 31 is closely examined, it will be seen that the defence ofgood faith is recognized only on behalf of the person who sells orkeeps or exposes for sale the adulterated liquor. The word “ know-ingly ” is not inserted in the clause which deals with the actualadulteration. In section 33a the Legislature, with section 31before it, has omitted the word ” knowingly,” and has expresslyand without qualification prohibited the thing itself. Moreover,there is reason for the distinction. It would be very hard to holdthat a person who had taken no part in the actual adulteration ofliquor—an adulteration which might not be capable of beingimmediately and readily tested—is responsible for what he had notsanctioned. On the other hand, the clear object of section 33ais to prohibit undsr-proof spirit from being sold, and the renter hasat his disposal means of ascertaining whether or not that prohibitionis being given effect to in the taverns under his control. It isimpossible here to ignore the fact that, while this under-proof spiritwas on sale in the tavern in question by the middle of January,its contents remained undetected till it was seized in the middle ofMarch. I hold that the appeal- fails as regards the third accusedalso.
Appeal dismissed.
» (1912) 15 N. L. R. 197.